Antonin Scalia’s 2007 remarks about national-security issues in the Ford administration

In my 2007 book, “Takeover,” I included a quote from a speech by Justice Antonin Scalia about his time as a senior Justice Department official in the Ford administration and during the Church Committee investigation. (Scalia was then the assistant attorney general for the Office of Legal Counsel.) I recently had a chance to listen to a recording of that speech and realized that my younger self slightly mis-transcribed it. This did not change the meaning, fortunately, but I want to take note of the error. In addition, because people on several occasions over the years have asked me for a copy of the whole speech, it seems worth taking this opportunity to make it generally available in case it can be useful to other scholars. So I’ve uploaded an MP3 to Google Drive and am linking to it at the bottom of this post.

Preliminary contextual notes:

First, Scalia made these remarks on June 12, 2007, as a keynote address for a national-security legal conference in Ottawa, Canada, called the “International Conference on the Administration of Justice and National Security in Democracies.” I also attended this conference as a panelist speaker and have a recording of his speech. His appearance got some media attention because in a separate Q&A session, he was asked about the possibility of prosecuting officials who tortured terrorism suspects, and responded by saying that no one would prosecute Jack Bauer of the TV show “24” for torturing a bad guy to save Los Angeles.  But it appears in my book that I was the only one to take note of anything from his main remarks, and this recording appears to be the only available record of them. 

Second, “Takeover” was published in September 2007, so the manuscript would have been complete and edited by that June and its index was also probably already done, making it hard to make changes. Straining, I can conjure up a vague memory of shoving this excerpt into it; that haste probably explains but does not excuse the imprecision. In “Takeover” the excerpt appears like this, with the suspect bits in bold:

Years later, Scalia would recall attending daily morning meetings during this period in the White House Situation Room with Marsh, CIA director William Colby, and other top officials. At those meetings, “we decided which of the nation’s most highly guarded secrets that day would be turned over to Congress, with scant assurance in those days that they would not appear in the Washington Post the next morning. One of the consequences of these congressional investigations was an agreement by the CIA that all covert actions would be cleared through the Justice Department, so, believe it or not, for a brief period of time, all covert actions had to be approved by me. Needless to say, I did not feel that this was an area in which I possessed a whole lot of expertise. Nor did I feel that the Department of Justice had a security apparatus [*] to protect against penetration by foreign operatives. We had enough security procedures to frustrate la cosa nostra, but not the KGB.

Listening again to the recording, I now think Scalia’s actual words were:

During part of this period I attended a daily morning meeting in the Situation Room of the White House at which Bill Colby, the Director of Central Intelligence, Jack Marsh, Secretary of the Army,  Mitchell Rogovin, a special counsel, uh, outside counsel, hired by the CIA, and a number of other high level officials decided which of the nation’s most highly guarded secrets would be turned over that day to Congress, with scant assurance in those days that they would not appear in the Washington Post the next morning.  One of the consequences of these congressional investigations was an agreement by the CIA that all covert actions would be cleared through the Justice Department.  So, believe it or not, for a brief period of time, all covert actions had to be approved by me.  Needless to say, I did not feel that this was an area in which I possessed a whole lot of expertise.  Nor did I feel that the Department of Justice had a security apparatus adequate to protect against penetration by foreign operatives.  We had enough security procedures to frustrate la Cosa Nostra but not the — not the KGB.

So I erroneously placed the opening quotation mark before the word “we,” but “we” was a paraphrase so the quotation mark should have come after it. I also slightly misplaced the phrase “that day” and missed the word “adequate.”

Note that Scalia misidentified Jack Marsh’s role; Marsh was actually a counselor to Ford in the White House and didn’t become secretary of the army until the Reagan administration. (Marsh, who died in 2019, was kind enough to give me an interview when I was researching the book in 2006.) The audio quality is a little muddy in spots, so others may have a slightly different interpretation.

I am indebted to Bruce Murphy of Lafayette College for restoring to me a copy of this audio recording. He had asked me for it some years ago when he was working on what became his 2014 book Scalia: A Court of One and I sent it to him, but when I recently went looking for my recording again I was unable to locate it – that was several computers and email accounts ago. He still was able to find a copy of what I had sent him and emailed it back, saving it from oblivion.

Here are links to the MP3 files:

Scalia’s keynote speech. (Unfortunately, it’s missing the very opening.)

Partial recording of the Q&A session. (Unfortunately, if memory serves, my recorder ran out of room and cut off before the famous Jack Bauer bit.)