There is no basis to accept Hayden's assertions before Congress on the NSA program or his beliefs about it's lawfulness. The timelines of key legal reviews disclosed in the NYT do not reconcile with Hayden's assertions about his beliefs or conclusions to the Congress on the lawfulness of the NSA surveillance. Hayden is reported to have said:

All agreed that the president was within his powers to authorize the program, Mr. Hayden said.

Notice the distinction: "Lawfulness of the program" is not the same as "lawfulness of the President's order" or "lawfulness of President's assertion of power."

A. DoJ OLC cannot "determine" outside the FISA Court that surveillance is lawful. This is a judicial decision, and DoJ OLC has no judicial power. Whether DoJ determined something is meaningless when both NSA and DoJ OLC legal counsel have no memoranda for NSA director to revivew.

B. It is serious when there is a known Presidential order unsupported by legal opinions; and FBI technicians discover the program, review the President's activity, and conclude the program is outside what the NSA is permitted to do. Hayden's assertion of lawfulness is not consistent with the FBI technician's conclusions, or what DoJ leadership did after discovery within 12 hours of the illegal surveillance.

C. The President has no power under the Constitution, through any act of Congress, FISA, or the AUMF to ignore the statute, FISA requirements, Constitution, or warrant requirement even during wartime. The President's order appers to have been unlawful, which NSA pesonnel assigned to the military knew or should have known could not be lawfull enforced, followed, or consitent with their oath of office. NSA IG needs to explain what happened to the NSA military personnel's reports about illlegal Presidential orders.

The NYT disclosures raise doubts whether Hayden's assertions should be believed. FBI personnel learned of the activity, and realized the program was outside what the law permitted. Whether the President "approved or authorized" something is a different issue than whether reasonable counsel would approve relying on the President's authorization as a blanket approval of all actions. The lawyers did not take it this way.

It appears Hayden lied under oath and/or intended to deceive Congress, for at least three [3] reasons:

1. The lawyers were not in agreement. Some lawyers concerned with the illegalities advised DoJ officials from signing the warrant applications. There was agreement the program was illegal, and express legal advice to not sign documents:

The adviser warned him not to sign the warrant applications because it was unclear where the wiretaps were coming from.

2. NSA lawyers were not given access to the memoranda, there was no basis for Hayden's comments to Congress about the legality of the program:

Even after the final legal opinions were written [in 2004], lawyers at the National Security Agency were not allowed to see them, officials said.

3. The President was also not given any DoJ OLC memoranda before making his decision, showing Hayden had no access to any legal opinion suporting his assertions to Congress:

But the presidential approval, one former intelligence official disclosed, came without a formal legal opinion endorsing the program by the Office of Legal Counsel at the Justice Department.

Hayden's assertions before Congress do not appear to reconcile with the NYT revelations today. Gonzalez was forced to resign over questions about the truthfulness before Congress. Will Congress revisit Hayden's comments during his Senate Confirmation hearing?

- Absent DoJ OLC memoranda, and no NSA legal counsel review or memoranda, what was the legal basis for the President's executive order; how was this order enforced against the telecoms or NSA/DoJ/DoD officials for their reported refusal to follow these alleged illegal orders?

- Absent any legal memoranda, what is the legal basis for DOJ OLC counsel to invoke privilege on deliberations/memoranda which never existed/occurred?

All, please beware that the individual who posted this blog posting and all comments,known as TESTING, is known to post unsubstantiated accusations such as this blog posting. He is little better than a spammer and his blog postings are spam at its worst.

While there may be some truth in the posting, it is only surely a result of pure accident on his part if there is so. Testing simply posts things he does not know about and then says because no one has stopped to explain the topic to him and the ins and outs, there must be a conspiracy.

He is no better than ChickenLittle....THE SKY IS FALLING THE SKY IS FALLING.