Ex-Justice Lawyer On NSA

The WaPo has a story on "David S. Kris, a former associate deputy attorney general who now works at Time Warner Inc." telling us that:

Ex-Justice Lawyer Rips Case for Spying
White House's Legal Justifications Called Weak

By Dan Eggen and Walter Pincus
Washington Post Staff Writers
Thursday, March 9, 2006; A03

A former senior national security lawyer at the Justice Department is highly critical of some of the Bush administration's key legal justifications for warrantless spying, saying that many of the government's arguments are weak and unlikely to be endorsed by the courts, according to documents released yesterday.

David S. Kris, a former associate deputy attorney general who now works at Time Warner Inc., concludes that a National Security Agency domestic spying program is clearly covered by a 1978 law governing clandestine surveillance, according to a legal analysis and e-mails sent to current Justice officials.

Kris, who oversaw national security issues at Justice from 2000 until he left the department in 2003, also wrote that the Bush administration's contention that Congress had authorized the NSA program by approving the use of force against al-Qaeda was a "weak justification" unlikely to be supported by the courts.

Paragraphs eight and nine continue the pile-on:

In sum, I do not believe the statutory law will bear the government's weight," Kris wrote in his paper, dated Jan. 25. ". . . I do not think Congress can be said to have authorized the NSA surveillance."

Eventually, in paragraph ten, we are reminded that the Administration has offered tow arguments - statutory authorization under the Authorization to Use Military Force, and the inherent Constitutional power of the President to wage war:

Kris refrains from passing final judgment on the government's constitutional argument, however, saying that more facts need to be known to reach a conclusion. The Justice Department says in its own "white paper" that the Foreign Intelligence Surveillance Act, which governs clandestine surveillance within the United States, must be unconstitutional if it conflicts with the president's inherent authority during war.

Oh, now they tell us.  Anyone re-reading the WaPo lead will note the qualifiers and caveats, but will a casual reader pick up on the fact that this critic (who apparently was not briefed on the program) is unsettled on a key Administration rationale?

Comments

[kim]

Only an adult would hide the prize in the last paragraph. A child would crow over it and show it off.

Kris's book'll be ready when?
=========================================

[kim]

I think someone should get on the phone with al Qaeda and see what happens to them. Any volunteers?

Another thought. Suppose our NSA attains the capacity for the finest datamining around, and American citizens are a protected class. What's the rest of the world going to think of that? Truth be known, it is important for law to build protections for everyone.
===========================================

[jerry]

"David Kris" - interesting name, a giant slayer with a terrorist's knife. I like it.

[capitano]

The Washington Post was disappointed that it was unable to find a former Justice lawyer who supported the case for NSA surveillance. Walter Pincus expressed similar regret, but vowed he would "soldier on."

[maryrose]

Again I repeat my request; any former employee is barred from making any comments about programs for 5 years or whenever their security clearances expire. I won't listen to former people who still want to be players ala Wilson . I especially disregard anyone who is peddling a book.

[Cecil Turner]

Eventually, in paragraph ten, we are reminded that the Administration has offered two arguments - statutory authorization under the Authorization to Use Military Force, and the inherent Constitutional power of the President to wage war . . .

He appears to be willfully misconstruing the Administration case (as you note, skimming over the strongest bit). Further, even the claim that AUMF allows the tapping is not primarily a statutory case, but a constitional one. Per Joe Biden, the AUMF is the Constitutional equivalent of "a formal declaration of war," where the President's Article II C-in-C powers are self-evidently at their zenith. Further, when Congress authorized the President to "use all necessary and appropriate force," Administration folks argue it puts them in the favorable paragraph of Jackson's much-cited Youngstown concurrence:

When the President acts pursuant to an express or implied authorization of Congress, his authority is at its maximum, for it includes all that he possesses in his own right plus all that Congress can delegate.

Both those arguments are at Constitutional ones, and both are persuasive. The main counterargument I see is that it's probably double-dipping (it's only one act--authorization or a declaration of war--so they ought to pick one and stick with it). However, either appears sufficient in this case.

The other obvious issue here is Mr Kris's conflicts of interest. We know he's now employed at Time Warner, and EPIC [hmmm, haven't I heard of them before?] obtained his e-mails through a FOIA request. Maybe it's just me, but perhaps Mr Kris ought to get a "Loyalty -- For Sale" sign. This is one case where learning he'd been one of the initial leakers might actually enhance his credibility.

[Attila (Pillage Idiot)]

Hiding the interesting information at the bottom is called the "double inverted pyramid" style of journalism.

[Seixon]

I think the most telling part about the article is the fact that he is portrayed as a current DoJ official by the blogs on the Left.

[Anonymous Liberal]

Tom, if you read through the rest of the Kris materials released yesterday, it's pretty clear that he has some serious problems with the Article II argument as well. For instance, after reading through the DOJ's initial memo, Kris makes the following comment.

My major disagreement with this, I think, is that the President's inherent authority to conduct electronic surveillance or physical searches in the *absence* of legislation is not the same as his inherent authority to do so in the *presence* of such legislation."

This is a basic principle of constitutional law and it's one that the administration has still not adequately addressed. It's absolutely devastating to their article II argument. This is the kind of comment a professor would put on your law school examine to explain why he gave you a bad grade.

Morever, if you read Kris' memo, the only reason he refuses to pass judgment on the Article II argument is because he can envision a factual scenario (a nuclear bomb in Georgetown) where he thinks Article II would trump FISA. But he's clearly highly skeptical that Article II could ever justify a policy that violates FISA. He withholds judgment because, inexplicably, he has never been briefed about the NSA program, this despite the fact that he was the DOJ's expert on FISA from 2000-2003 and testified before Congress several times--on behalf of the administration--on how FISA is enforced.

Long story short. I think the Post article was more than fair in its characterization of Kris' views.

[Anonymous Liberal]

I think the most telling part about the article is the fact that he is portrayed as a current DoJ official by the blogs on the Left.

Kris worked for the DOJ from 2000-2003, but the DOJ reached out to him in Dec. 2005, after the story broke, to help craft their legal defense of the program. The emails and memo the WaPo describes in the article are from Dec. 2005 and Jan. 2006. Kris was essentially an outside legal consultant for the administration. So his views are important. The administration specifically reached out to him when this scandal broke because he is one of the foremost experts in the country on this area of law. And he basically told them that their arguments stink and are unlikely to prevail in court, the same thing that just about every attorney not affiliated with the administration has been saying for some time now.

[Lew Clark]

Time Warner found a lawyer who works for them that disagrees with the Administration! This is the first time in history lawyers have ever disagree. Until now, you'd have lawyers for the two parties who always agree. That's why it only takes 10 minutes to try a case. Both sides show up, one lawyer makes an argument, the other lawyer jumps up and says "I agree!", then they shake hands, and the court goes to the next case. So this is big! A lawyer working for Time Warner disagrees with the Administration's legal opinion. And since the NYT has announced that the Constitution vests all national security decisions in newspaper(media) editors, I think it's over. It could go to the Supreme Court, but since those same editors did not agree with the Roberts or Alito appointments, I think the editors would withhold authority for the Supreme Court to rule on this.

[Sue]

From the article:

The program, approved by President Bush in October 2001, was first revealed publicly in media reports in December and has been the focus of furious political battles since then.

Kris's views are contained both in a 23-page legal analysis that he provided yesterday to journalists and in a series of e-mails that he sent in December to Courtney Elwood, an associate counsel to Attorney General Alberto R. Gonzales.

[Emphasis mine]

Coincidence? Or could he be one of the dozen used in the NYTs' article?

[Sue]

Anon,

That doesn't make him a current DoJ official. It makes him a consultant. Right?

[Anonymous Liberal]

Coincidence? Or could he be one of the dozen used in the NYTs' article?

No. No. No. Read the story. The administration contacted Kris after the story broke because they wanted his help shaping their legal arguments. He was basically a consultant. He had no prior knowledge of the NSA program because they deliberately left him out of the loop when he was at DOJ.

And Tom, just so you don't think the Post is being biased, here's what Orin Kerr at Volohk had to say about Kris' memo:

David Kris, who served as Associate Deputy Attorney General at DOJ from 2000 to 2003 and was one of DOJ's top national security lawyers, has written a 23-page response to the 42-page DOJ memo on the NSA program. Kris, who is now in the private sector, is a terrific lawyer with a very deep knowledge of this area. His memo is (unsurprisingly) very strong. While Kris does not reach a definitive conclusion, the basic thrust of the memo is that the Administration's legal arguments aren't very good.

[clarice]

The front page of today's WaPo is particularly good for teaching high school students how to be critical readers. Alongside the Kris piece is another whose headline suggests we are preparing for an immanent civil war in Iraq.

When you read the story you get a different picture.If you saw the hearings on tv you get even a clearer one.
Rumsfeld was testifying before Congress. It was "sheets" Byrd who insisted we were on the cusp of a civil war and who pressed Rumsfeld to say what our plans were when it happened.
Rumsfeld said our plan was that it NOT happen, but if it did Iraqi forces would carry the laboring oar in defusing it.

Like the non-existent Afghan "quagmire" they touted from the moment we looked like we would invade to the non-existent "civil war", the press grabs a theme and sticks with it no matter that the facts don't fit.
(I expect journo students practice by using cuticle scissors to make jigsaw pieces fit together faster and then throw the excess pieces under the carpet.)

[Sid]

“My major disagreement with this, I think, is that the President's inherent authority to conduct electronic surveillance or physical searches in the *absence* of legislation is not the same as his inherent authority to do so in the *presence* of such legislation.

This is a basic principle of constitutional law…”

The constitutional principal is that legislation can INCREASE the Pesident’s “inherent authority” under the constitution. If I ever have to go to the Supremes I would not want to hire any legal adviser who thinks that congress can legislate a restriction on the President’s authorities granted under the constitution.

[Sue]

Anon,

Okay. I saw that in your post after I posted mine coincidence post.

Man, the DoJ needs to do a better job of picking consultants don't they?

[clarice]

AL, After the "leading lights" of American law schools got laughed out of court in FAIR, most sensible people acknowledge that "legal experts" are not what they think they are.

Since Kris admits he lacked knowledge of the details of the program, since other lawyers in NSA and DoJ who did have this knowlege said it was legal, and since those members of Congress who were informed took none of the steps available to them to stop it, I don't see that Kris adds much to what I believe is a pointless dispute.

I think we have less of a true constitutional law debate than an intra-branch fight in which Congress is trying to clip the President's wings and the left is trying to lay the groundwork for an impeachment fight.

[Anonymous Liberal]

AL, After the "leading lights" of American law schools got laughed out of court in FAIR, most sensible people acknowledge that "legal experts" are not what they think they are.

Please. No one thought the law schools would prevail in that case. I'm sure many hoped they would, but everyone knew the law was not on their side. The NSA situation is entirely different.

[Sid]

If the USA PAID this Kris as a consultant (hired him as an attorney), how is it that he can take that work product and GIVE it to the LSM?

[Gary Maxwell]

Here I am on the search for some logic. On the one hand AL says this guy is an expert in the law but on the other hand he is a member of EPIC. And then I also think Cass Sunstein, what is he chopped liver? Until I know differently, The EPIC stuff is going to shade my conclusions here. You know the Joe Wilson speech etc.

[Gary Maxwell]

No one thought the law schools would prevail in that case.

They won at the appelate level! Surely you jest.

And NO ONE thought it would be unanimous. Stinging rebukes administered while you wait.

[Dwilkers]

"...the only reason he refuses to pass judgment on the Article II argument is because he can envision a factual scenario (a nuclear bomb in Georgetown) where he thinks Article II would trump FISA."

I guess its a less powerful constitutional argument if we're only taking a terrorist with an assault rifle or a car bomb then?

Is that the constitutional point he's making AL? That the potential physical presence of a nuclear weapon would change the constitutional calculus?

[clarice]

So, they used university funds to advance a frivolous claim, such claims being unethical for lawyers to advance. Now there's a first rate argument.

And in the process not only did they lose, but they persuaded the SCOTUS to go even farther and hold that Congress could compel military recruiting on campus even if the universities took no federal money. Brilliant lawyering that!

[Gary Maxwell]

You know if I hired an attorney to advise me and he took e-mails back and forth and memos he wrote to me that I paid for and gave them to my opponent or just put them in the public domain, I would be looking for another attorney to both sue him for this breach of contract and pursue the obvious lack of ethics.

How about AL? What's your opinion of the fine ethics on display here? I am dying to hear this one, trust me.

[TexasToast]

We seem to have a problem with analysis vs. advocacy. A lawyer has a duty to give his client his best judgment as to the most likely outcome (Kris as a consultant) but also owes a duty to advocate a client's position to the best of his/her ability (the DOJ briefs).

Isn't it likely that the "leading lights" were performing their duty as advocates in the law school case? I think that 8-0 ought to tell us something about what the "leading lights" would have said if they hired as consultants rather than as advocates.

[Sue]

Clarice,

Sure, no problem. Just tie up an already overworked court system with a lawsuit you know you are going to lose anyway. What was their reason for doing so again? What were they hoping to accomplish? A 5/3 split?

[Gary Maxwell]

Brilliant lawyering that!

the guys charged with instructing the next genration of the best and brightest on the finer points of law.

AL you stepped in in, go clean your shoes off.

[Gary Maxwell]

2nd in = it

Sheesh

[Gary Maxwell]

genration = generation

Double whammy

[clarice]

BTW this EPIC is not Wilson's EPIC.

[Gary Maxwell]

What a sec on the whole "just an advocate" meme. Wasn't the lead plaintiff FAIR, who membership while guarded is the faculty of the elite law schools? Didn't some elite law professors also allow themselves to be named as plaintiffs? I am pretty sure thats correct on both counts. Now here is a killer point. What about all the amicus briefs filed, with only one supporting the adminstration position coming from a law school ) George Mason. What obligation does a lawyer have that is not hired to advocate but chooses voluntarily to offer his help as a "friend of the court" which I think is a decent translation of amicus curia.

TT you just stepped in it too.

[TexasToast]

Gary

If a client hires me to write a brief, amicus or otherwise, to support his/her/its position in a legal dispute, it is my duty to use my best efforts to support that position. If on the other hand, he hires me to analyze the law to determine the most likely outcome, it is my duty to give him my best opinion as to what the likeky outcome will be. In either case, I can be wrong without being unethical.

If I submit my own brief, I can also be wrong without being unethical.

[clarice]

One of the named plaintiffs in the fair case was Erwin Chemerinsky of Duke he, too, said the NSA program was illegal as did Lawrence Tribe an outspoken defender of the FAIR suit.

At some point we have to acknowledge that for many of the "leading legal lights", the Constitution is but a blank sheet of paper onto which they project their druthers.

(Tell me with a straight face these two wouldn't be defending the surveilance if the President was a Dem.)

[Gary Maxwell]

TT you have a very different understanding of Amicus Curia than I do. Can you show me two examples in this case where the amicus brief had a client that paid for the advocacy. So what if too if in this unique case the client is bunch of faculty lawyers? OK TT you dont bleieve the baloney you just sliced and serve but its a paying gig so here goes, and the client is a faculty of law profs?

Take a spin at the ethics question I posed to AL too. How does Kris avoid discussing the loss of his license with the Board?

[Sue]

Texas,

Can you then use the knowledge I gave you to write your analysis and talk to a reporter?

[boris]

I suggest a "legal expert" might be more inclined to give weight to the legal argument relative to the constitutional one. The constutional authority of the president doesn't come up in court that often. It's something the "experts" read about and form opinions on but not something they have first hand experience in.

Whenever SCOTUS has intervened in the other branches, (as it did wrt line item veto) it acted to constrain overreach rather than impose some policy. In the NSA case there is no executive "overreach". Executive is doing what they have inherent authority to do absent explicit congress restriction. So if SCOTUS does decide to meddle, it would more likely constrain congress overreach than subject the executive to a risky policy outside their area of constitutional responsibility.

"Experts" that don't take that into account are not very credible.

[Barney Frank]

AL said,
"Morever, if you read Kris' memo, the only reason he refuses to pass judgment on the Article II argument is because he can envision a factual scenario (a nuclear bomb in Georgetown) where he thinks Article II would trump FISA."
Ah lovely,
If we somehow obtain the knowledge that we need to tap someone's phone without a warrant to prevent a nuclear weapon being detonated in our nation's capitol then we can.
How do you know there's a nuke in georgetown unless you are conducting ?

This is why nobody can trust liberals with our nations security. It's all apparently just an academic exercise wherein we debate whether someone's civil rights might conceivably be violated while our enemies are trying to obliterate our cities.

Where's FDR when we need him? If the Dems of today made up the party of WWII everyone west of the rockies would be speaking japanese and everyone east of it would be eating sauerkraut.

[Barney Frank]

Sorry, should have said "....unless you are conducting extensive, (including warrantless) searches in the first place?"

[clarice]

Kris' EPIC is funded by Soros' Open Society Foundation and he is an advocate for "privacy" which means among other things opposition to much of the HSA and Patriot Act provisions. http://www.epic.org/epic/annual_reports/2004.pdf

[Gary Maxwell]

Well Clarice I appreciate the correction. Still it seems worse to me. If Soros is behind it, it aint middle of the road or purely academic is it. I think I will move on.

[Dwilkers]

"Where's FDR when we need him?"

Indeed. Or JFK.

FDR:

With confidence in our armed forces, with the unbounding determination of our people, we will gain the inevitable triumph, so help us God.

JFK:

Let every nation know, whether it wishes us well or ill, that we shall pay any price, bear any burden, meet any hardship, support any friend, oppose any foe, in order to assure the survival and the success of liberty.

What exactly was it that happened to this once proud political party? I missed the exact point of transition to what it is today.

[clarice]

Indeed, Gary. Now to find out who at DOJ decided he was the person to engage to "consult" on this issue since it seems whatever he would say was a foregone conclusion, doesn't it?

[Gary Maxwell]

Is it just me or did neither of AL or TT want to explain how an advocate can eithically release the work product and advice given in confidence to a client?

The "we never expected win" and its corollary "just an advocacy thing" sounds a lot to me like Kos explaining why his 0-17 record is not utter and complete failure. It dont pass the laugh test.

[cathyf]

Hmmm... So the gov hired a consultant whose employer and other consulting clients give him a humongous conflict of interest when it comes to rendering an unbiased opinion. Who then turns around and blabs to the press a version of events where we have no way to judge the degree of bias which motivated what he chose to share with the press. Where have we heard this story before? Do you think his wife suggested him for the gig?

cathy :-)

[clarice]

The more I read of AL's rants the more I understand his decision to remain anonymous.

[Dwilkers]

It wasn't just you Gary, I was waiting for an answer too. I was actually pretty curious because it seems fairly unusual to me, but I'm not a lawyer as I've said before.

[Sue]

I find it odd he oversaw NSA from 2000 to 2003 and had never been briefed on the program.

[Cecil Turner]

No. No. No. Read the story. The administration contacted Kris after the story broke because they wanted his help shaping their legal arguments. He was basically a consultant.

The story might imply that, but a quick perusal of the e-mails suggests something different:

I haven't spoken to Senator Feinstein--she was supposed to call me but hasn't yet--but in the meantime I wrote the attached. It is a VERY rough cut--done quickly, without the facts, and in part while playing with [redacted--probably "my young daughter"]. If you or others inside DOJ want to clear up my muddled thinking on any issue, of course I'd be happy to hear your views." [. . .]

Looks to me like he was providing a critical analysis to Feinstein, et al, and gave DOJ an opportunity to comment.

BTW this EPIC is not Wilson's EPIC.

Right you are. Thanks for the correction.

[Sue]

http://www.editorandpublisher.com/eandp/news/article_display.jsp?vnu_content_id=1002155736>Want a Pulitzer? Just leak a national security issue

[Sue]

No. No. No. Read the story. The administration contacted Kris after the story broke because they wanted his help shaping their legal arguments.

Maybe I'm just not comprehending what I'm reading, but nowhere in the article does it say they contacted him after the story broke.

[TexasToast]

Gary

I have no way of knowing what Mr. Kris' empoyment relationship with the DOJ was - so I have no way of determining precisely what ethical duties he assumed - but it is my understanding that he was not engaged in a representative capacity.

There is a large difference between opining as an expert vs representation as an advocate.

[Sue]

Boris,

Did I leave a tag open or something?

[JM Hanes]

Sue

"What were they hoping to accomplish? A 5/3 split?"

Well, at least they'd have been able to claim they took it to the "precipice of victory." It's tough to declare even a moral triumph with an 8/0 decision and no dissent to hang your hat on, although TexasToast does the best he can: They knew they would lose but soldiered on!

[Gary Maxwell]

opining as an expert vs representation as an advocate.

Is there any, ANY way an attorney can be hired and be told stuff in confidence and then feel free to blab it to the other side or just put it in the public record where it is available to the other side.

Given what you do know, that he has put this info out, is it likely that we should assume him ethical and therefore conclude that he was not hired by DOJ and is just aformer govt emplyee with an opinion and therefore the article is sadly mistaken on the point of him being hired to address the issue after the story broke? The alternative is believing in the worst of humanity isn't it? Or enlighten me.

[cathyf]

Gary, read the link Cecil posted. Kris was hired by Sen Feinstein and/or EPIC to write the analysis, and he merely offered it to his former DOJ colleagues to comment on as a courtesy. Publishing it is certainly in the interests of his client(s), who appear to be some combination of EPIC and democrat senators.

cathy :-)

[Anonymous Liberal]

You know if I hired an attorney to advise me and he took e-mails back and forth and memos he wrote to me that I paid for and gave them to my opponent or just put them in the public domain, I would be looking for another attorney to both sue him for this breach of contract and pursue the obvious lack of ethics.

How about AL? What's your opinion of the fine ethics on display here? I am dying to hear this one, trust me.

Gary, these document were released by the government in response to a FOIA request. Did you even bother to read them? They have "FOIA" stamped all over them. There are no ethical issues here.

[clarice]

Don't you suppose Eggan and Pincus had some duty to explain what EPIC was? For whom the memos had been written? Do you suppose if the FOIA request had been by the Olin Foundation the sponsors and aims of the group would have been disclosed?

[Anonymous Liberal]

Gary,

Kris wasn't "hired" by the DOJ when this story broke (at least as far as I know). He was merely consulted by the DOJ because he is an expert in the area and they wanted his input. That was the context of the emails, which were released by the government in response to a FOIA request.

The memo was a separate deal. He was not commissioned to write it by the government, so there's no ethical issue there either.

[Gary Maxwell]

Cathy

thanks I had already gotten there thru Occam's razor. I was just being rhetorically dumb hoping TT and AL would walk through to how it could be anything else.

I dont know about you but guys who show others their private e-mails to me, dont endear themselves to me. I am not talking about my responses either, if a communication to me is private I expect it to remain that way or at least have the courtesy ahead of time to tell me you are going to fly it around.

Just to refresh how this whole nonsense started though here is AL again at his very best:

No. No. No. Read the story. The administration contacted Kris after the story broke because they wanted his help shaping their legal arguments. He was basically a consultant.

[maryrose]

All advisors,consultants or whatever you call yourselves- Stop talking to the msm press. All they do is take what you say,true or not and distort, embellish and twist the story to satisfy their own agenda. They can whine all they want we are not having NSA hearings. We didn't for Echelon and we are not doing it now. Separation of powers trumps any type of power grab by the legislative body. These LIBERAL lawyers at the elite universities{Gary is right Taliban Yale was a plaintiff} need to be smacked down every now and then {8-0 decision } for them to realize they can't re-write the Constitution. Imagine their law students' surprise when their esteemed professors became part of the SC smackdown. Imagine trying to spin that result in class. Yale student body 85% liberal 15% conservative.

[clarice]

We have no idea do we, how Kris was involved. It appears he merely offered this up to the DoJ and was not a "consultant" to them.

[Anonymous Liberal]

I dont know about you but guys who show others their private e-mails to me, dont endear themselves to me. I am not talking about my responses either, if a communication to me is private I expect it to remain that way or at least have the courtesy ahead of time to tell me you are going to fly it around.

Gary, the emails were released by the government in response to a request through the Freedom of Information Act. That's why they are redacted.

[clarice]

Nor have we any idea how EPIC learned of this, do we?

Let's just suppose that Diane Feinstein asked him to do this and that someone whispered in EPIC's ear that DoJ had his correspondence and filed a FOIA request for all emails and correspondence with him on that matter. And let's just pretend no one told EPIC that this was there waiting for them to seek and release.

[Gary Maxwell]

AL

Wow! How much advice do you pass out for free, AL? Free is your out right. If he got a $50 check its different right? Consulted as in, "wadda think about the Spurs v Mavs tonight Kris? Yeah really? Also got any thoughts on this stuff that is covering my desk up right now? Dont spend any time on it cause I cant pay you a nickel but just making conversation and I knew you would have an opinion you always do you sly dog you...

[Anonymous Liberal]

Let's just suppose that Diane Feinstein asked him to do this and that someone whispered in EPIC's ear that DoJ had his correspondence and filed a FOIA request for all emails and correspondence with him on that matter. And let's just pretend no one told EPIC that this was there waiting for them to seek and release.

You may be on to something Clarice. Clearly what we have here is a nefarious conspiracy to express an opinion.

Look, David Kris is a well-respected lawyer across partisan lines. He was an expert on FISA in Bush's DOJ. The Bush administration sent him out to testify to Congress on behalf of the administration about FISA on several occasions. It's newsworthy that he thinks the administration's legal position is garbage. Kris was the point man on the Bush administration appeal to the FISA Court of Review (In re Sealed Case). I doubt there is anyone who has a better idea of what arguments are likely to fly in court on this subject.

[Anonymous Liberal]

Gary,

If you're suggesting that Kris wrote this memo because he was paid by a client to write an advocacy piece, I don't think you have any basis for that accusation. Most attorneys do this kind of stuff pro bono. Plus, that wouldn't be very useful to the group. I know nothing about EPIC or what their agenda may be, but they could pay anyone to write a good legal argument against the program. If they indeed commissioned this, what they would have wanted was an expert opinion, not an advocacy piece.

[clarice]

(a) who engaged him to write this?
(b) how much weight should we give to an opinion which admittedly was not based on the facts (of which he has admitted ignorance)?
(c) how much weight should we give to an opinion which left out the strongest arm of the government's case?

Let's test this, I'm going to close my eyes as I read thru the facts of a case, ignore altogether one of the two arguments and tell you what I think the result should be. Would you pay 2 cents on the fair market for that opinion? I wouldn't but then I admit I'm picky.

[Sue]

Anon,

Except he wasn't briefed so he really doesn't know. Right?

[boris]

legal position is garbage

Hmmm don't you mean "weak and unlikely to be endorsed by the courts" ???

The courts don't have to "endorse", they simply could refrain from intruding. Your own obvious bias rather discredits your assertions about who is well-respected or non-partisan. I would be curious if his POV shifted when his employment changed from W to Feinstein.

[Specter]

This is getting really ridiculous. Riddle me this - If this guy was "one of the leading experts in this area of law" and was working for DOJ at the time the program was started, why wasn't he asked then? Why wasn't his opinion important then? I mean - if he was one of the "leading experts"....it does not make sense. Huh?

[clarice]

And AL, do not think you are being persuasive when you duck altogether the who commissioned him bit. He wrote it while on the Time Warner payroll. We have no indication anyone actually paid for an opinion which was not based on the facts and only considered one half of the argument, the least strong of the two.

And your argument that if EPIC commissioned it they'd have wanted it to be unbiased and fair, is a unique (and risible)argument to make on behalf of a frankly advocacy group, an advocacy group opposed to any government secrets--just wander over to their site and read their latest report.

[Anonymous Liberal]

Let's test this, I'm going to close my eyes as I read thru the facts of a case, ignore altogether one of the two arguments and tell you what I think the result should be. Would you pay 2 cents on the fair market for that opinion? I wouldn't but then I admit I'm picky.

Clarice, I wouldn't pay two cents for your fully-informed opinion.

Sorry, that was too easy. Seriously, though, you clearly haven't read the memo. Admit it. In the memo Kris addresses all of the administration's arguments in depth. He doesn't leave anything out. And as for the facts, that's a cop out. We know more than enough about the program to assess its legality. We need to know more of the facts to assess its value as policy, but there are only a few facts which are at all relevant to the legal analysis, and those have all been made public. The rest is just a matter of law.

[Anonymous Liberal]

This is getting really ridiculous. Riddle me this - If this guy was "one of the leading experts in this area of law" and was working for DOJ at the time the program was started, why wasn't he asked then? Why wasn't his opinion important then? I mean - if he was one of the "leading experts"....it does not make sense. Huh?

This is exactly the point, Specter. The administration didn't consult him when he was there, despite the fact that FISA was in his portfolio. He was the guy they sent to Congress to testify whenever FISA was being discussed and the guy they put in charge of arguing In re Sealed Case, yet they kept him out of the loop. My guess is that they did this because they thought he would tell them something they didn't want to hear (much like Comey and Goldsmith eventually did).

[SmokeVanThorn]

So let's see - "The administration contacted Kris after the story broke because they wanted his help shaping their legal arguments. He was basically a consultant." No - wait - he was doing this pro bono, which means it's not advocacy. No- wait - EPIC might have hired him, but if it did, it didn't want advocacy, it wanted an expert opinion.

Why does anyone pay attention to AL?

[Gary Maxwell]

AL

You are twisting my words to avoid addresing your own. He was not a consultant to the government. He used to work there and probably was in a Super Bowl pool with some of the DOJ guys. Might still have lunch on occsion with a few.He was not unethical that I know of, and I never accused him of such. I just pointed out that you set him up as a guy the government hired or "consulted" with and then the cigar blew up in their face.

I dont know that he was or wasn't paid by the Senator or EPIC or Howdy Dowd. Maybe he did it as a lark or in $300-a-hour words "pro bono."

But lose the DOJ consultant stuff cuz an unpaid consultant is what we used to call "unemployed looking for work."

[Specter]

More guesses though huh AL?

[Gary Maxwell]

And as for the facts, that's a cop out.

Inadvertantly AL I think you have hit upoon something really big. Call Howie, Nancy and Harry and tell them you have found the Liberal slogan to run on.

[boris]

the President's inherent authority to conduct electronic surveillance or physical searches in the *absence* of legislation is not the same as his inherent authority to do so in the *presence* of such legislation.

Seems I've seen this argument before Kris. Another thread and a commenter who shall remain anonymous as I recall ...

This is of the form X would be true except for Y. In this case that premise cannot be simply asserted to shift the debate onto more favorable ground. You may recall a certain meaningless peice of dicta which said ...

We take for granted that the President does have that authority and, assuming that is so, FISA could not encroach on the President’s constitutional power.

[Gary Maxwell]

Cass Sunstein act humbled, as AL has entered the discussion. And I am keeping my $.02 in my pocket based on all that you have proffered so far AL.

[clarice]

Why don't we write our opinion to DoJ, see if EPIC finds out about it and files a FOIA request for it, transmits the results to Pincus and get it on A-3 of the WaPo. What do you think are the odds of that happening...or, a look behind the curtain at Pincus' ties with the left..

[clarice]

Watching Pincus work is as appetizing as touring a sausage factory.

[Sue]

What am I missing? Where is Anon finding that DoJ contacted him?

[Specter]

Bottom line - Time Warner's paid flunky is a bit late to the party. This issue is not going to be fought out in court. It is a political beast. If Demoncrats keep pushing they look weak on national security. The only one out making public statements if Rocky - and we all know why he wants to deflect others. Elections are more important to these folks than gettin a rep for being soft.

As for MSM and their continued barrages - who can trust them anyways. WaPo announced 80 more layoffs. They are fighting for their lives and the only way they can do that is to find more and more questionable material to print. Look at the new AP/IPSOS poll lauded by MSM today. It was published with BIG HEADLINES even though it was based on an invalid statistical population. More here.

[boris]

Sue ... no I just wanted to steal the credit for your link (check the underline of "posted by")

[Sue]

We know more than enough about the program to assess its legality. We need to know more of the facts to assess its value as policy, but there are only a few facts which are at all relevant to the legal analysis, and those have all been made public. The rest is just a matter of law.

If this is true, then why did Kris refrain, citing lack of knowledge, from addressing the legality of the program using the stronger of the 2 arguments, the constitution? Because he would have had to admit it would withstand the scrutiny? So he copped out?

[Gary Maxwell]

Sue frankly I am a bit confused. They consulted or didnt consult cuz they knew what he would say. He is an expert, or an advocate or working for free or talking to his buds or WTF???

[Sue]

Boris,

I posted a link. Do you have to turn off the underline when you post a link? If so, I've messed the board up on more than one occasion. ::grin::

[Syl]

AL

Clearly what we have here is a nefarious conspiracy to express an opinion.

Libby is not under discussion in this thread. Try to stay awake, please.

[boris]

Sue, your close tag had the slash after the "a" as in a/> instead of /a>

[Sue]

Boris,

Oops. Thanks.

[PeterUK]

"Kris worked for the DOJ from 2000-2003, but the DOJ reached out to him in Dec. 2005, after the story broke, to help craft their legal defense of the program"

What ever happened to client confidentiality?

[Syl]

AL

We know more than enough about the program to assess its legality.

And you and so many of the lawyers are ignoring one of the pieces of knowledge...the sheer weight of bureaucratic paperwork involved in getting a FISA warrant. Contrast that with the immediacy and number of calls needing to be covered.

Just a minor detail? It simply makes the 1974 FISA unworkable for the problems and technology we have in this century.

It's not that Bush doesn't WANT to get warrants, it's that using the FISA system is too cumbersome.

[clarice]

No matter how many times I read the article I can't find that DoJ reached out to him at all.

This is the best I can find-

Kris's views are contained both in a 23-page legal analysis that he provided yesterday to journalists and in a series of e-mails that he sent in December to Courtney Elwood, an associate counsel to Attorney General Alberto R. Gonzales. The e-mails were released yesterday by the Electronic Privacy Information Center, which obtained them as part of ongoing Freedom of Information Act litigation.

EPIC got the emails thru a FOIA request, and Kris ON HIS OWN, distributed his brief to reporters. I see not one hint that DoJ solicited his brief or views at all. And I'd be astonished that Pincus would fail to mention that were it true.

[maryrose]

AL;
What do you mean when you say the memo was a separate deal?

[Syl]

You know, if this Kris feller is such an expert on FISA, then FISA must mean a great deal to him. 'twould be a shame if the beautiful FISA procedures were to be superceded by mere presidential authority.

Such a blow to one's self-esteem.

[Gary Maxwell]

Clarice

Are you astonished that AL claimed and then refused to take it back and changed the subject. I know I am not.

[clarice]

I am more astonished that AL makes so many claims about the facts based on a short article available to us all which says nothing of the sort.

[PeterUK]

"The memo was a separate deal. He was not commissioned to write it by the government, so there's no ethical issue there either."

If Kris was using information gained confidentially,yes there is.