Goldsmith: Legal Basis for Surveillance Program was “Biggest Mess”

The senators did their best to wring more information from Jack Goldsmith about the administration’s warrantless surveillance program during today’s hearing. It was Goldsmith’s legal analysis, after all, which led to the Justice Department leadership’s revolt in 2004. But it was a mixed result.

Since the beginning of this year, the Senate Judiciary Committee has been seeking documents from the Justice Department and the White House about the legal basis for the program. They’re still waiting.

And today, Sen. Arlen Specter (R-PA) tried a more modest tack. He tried to get Goldsmith to say what Constitutional principle had been violated by the program. Goldsmith replied that the executive branch had told him that he couldn’t discuss any aspect of his legal analysis. Specter asked again, and Goldsmith again said that he’d been instructed not to.

Goldsmith did manage to add some details, however. He revealed that only four lawyers at the Justice Department were permitted to examine the program — that’s including the attorney general and Goldsmith himself. When asked why the administration had so restricted that access, he said that it was probably because they did not want the legal analysis (that had, until Goldsmith, allowed the program to go forward) scrutinized.

As it was, he said, the basis for the program was “a legal mess” when he took over the Office of Legal Counsel in 2003 — the “biggest,” he said, he’d ever encountered.

And counter to former Attorney General Alberto Gonzales’ testimony to Congress, Goldsmith said there were “enormous disagreements about many aspects of the Terrorist Surveillance Program.” Goldsmith repeatedly used the plural when describing those disagreements, making it clear that it was not a single aspect of the program that was at issue.

After “several months” of reviewing the program — a process made more difficult, he said, by the fact that so few lawyers were allowed to know the details of the program — Goldsmith told then-Attorney General John Ashcroft, and then Deputy Attorney General James Comey in the spring of 2004 that he could not find a legal support for certain aspects of the program. The rest, they say, is history.