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I was previously a constitutional law and civil rights litigator and am now a journalist. I am the author of three New York Times bestselling books -- "How Would a Patriot Act" (a critique of Bush executive power theories), "Tragic Legacy" (documenting the Bush legacy), and With Liberty and Justice for Some (critiquing America's two-tiered justice system and the collapse of the rule of law for its political and financial elites). My fifth book - No Place to Hide: Edward Snowden, the NSA and the US Surveillance State - will be released on April 29, 2014 by Holt/Metropolitan.

Monday, December 19, 2005

Claiming the right to break the law

Despite the uproar this weekend among right-wing bloggers who were insisting (and are still insisting) that the Administration’s warrantless eavesdropping on American citizens complied with FISA, there is actually no real controversy about this because no reasonable ground exists for disputing that the Administration violated that law – as even the Administration itself is now acknowledging.

Put another way, Administration lovers were so desperate to defend their leader at all costs -- they begin with the pre-ordained resolve to defend Bush no matter what and thereafter search for a rationale to prop up that goal -- that they latched onto an argument this weekend which is so facially wrong that even the Administration itself repudiates it as a grounds for defending the President’s conduct.

As was predicted yesterday, the Administration is not defending itself by claiming that its warrantless surveillance complied with FISA. It cannot claim this because FISA so plainly prohibits warrantless searches against both terrorist suspects and American citizens, and the Administration deliberately eavesdropped on both without obtaining a warrant. It is just that simple.

For that reason, Condoleezza Rice went on Meet the Press yesterday (h/t Firedoglake) and did not even attempt to argue that the Administration complied with FISA. To the contrary, Rice said that FISA was now obsolete (even though it is still sort of the law) and, based on that view, justified the Administration’s violations of FISA. Rice claimed that this warrantless eavesdropping on America citizens was authorized not by FISA, but by so-called unspecified "additional authorities that [the President] has under the Constitution and under other statutes":

MR. RUSSERT: The law is very clear that a person is guilty of an offense unless they get a court order before seeking to wiretap an American citizen. Why did the president not get a court order? . . .

SEC'Y RICE: The Foreign Intelligence Surveillance Act, exactly. FISA, which came out of 1978 at a time when the principal concern was, frankly, the activities of people on behalf of foreign governments, rather stable targets, very different from the kind of urgency of detection and thereby protection of a country that is needed today. And so the president has drawn on additional authorities that he has under the Constitution and under other statutes.

Rice was obviously pre-programmed with the phrase "additional authorities that he has under the Constitution and under other statutes" because she repeated it multiple times like some hypnotic mantra but clearly had no idea what it meant:


MR. RUSSERT: What are the other authorities?

SEC'Y RICE: Tim, again, I'm not a lawyer, but the president has constitutional authority and he has statutory authorities.


Thus, Rice specifically rejected the claim advanced by some Administration fans this weekend that FISA could be used to authorize the Administration’s surveillance. Unlike its slavish defenders in the blogosphere and elsewhere, even the Administration could not muster the audacity to claim that it complied with FISA when ordering this surveillance on American citizens. As this morning’s New York Times article explained:


But the law is specific in banning any searches without warrants on Americans except in extraordinary circumstances, like within 15 days of a formal declaration of war, said David D. Cole, a Georgetown University law professor who specializes in national security law.

The Bush administration has not cited any of those exemptions for the domestic eavesdropping program. The White House and other defenders of the program maintain that the president has the authority to allow such searches in the interests of national security.



Rice also destroyed the absurd claim advanced this weekend that FISA (which permits warrantless eavesdropping on agents of foreign states for up to a year) authorized Bush's surveillance of suspected terrorists because terrorists are "state agents." She said the exact opposite was true when explaining why the Administration could no longer be bothered with complying with that law:

SEC'Y RICE: Tim, the circumstances of FISA relate to rather more stable targets, people who are principally acting on behalf of governments. These are stateless networks of people who communicate and communicate in much more fluid ways and where the urgency of detecting where the importance of not letting it happen is far greater than I think anything that would have been envisioned in 1978, before we saw the twin towers and the Pentagon go down.

Of course, for 3 years we have been told that terrorist suspects aren't entitled to the protections of the Genvea Convention precisely because they are not state actors but, instead, are stateless enemy combatants. That didn't stop the Administration defenders this weekend from taking the exact opposite position in order to argue that FISA authorized Bush's surveillance, an argument which even Rice made clear was wrong. But that's the level of intellectual dishonesty to which Administration defenders are willing to sink to defend the President no matter what he does.

And that leads to the broader point here, one which is much more important than the issue of whether the Administration violated FISA, and it is this: There is a sizeable portion of the population which really is willing to defend the President no matter what he does and will almost never criticize his conduct (except to argue that it is insufficiently conservative or uncompromising). When a story like this is revealed, their first reaction is instinctively to defend the President without even knowing why they are doing that.

When Bush is accused of wrongdoing, they immediately look around for defenses -- any defenses at all -- that they can find, latch onto them the minute they see them, and then start wielding them without even considering whether those reasons are persuasive or right. There were countless examples in the blogosphere over the weekend where one blogger posted some half-baked legal theory justifying Bush’s surveillance and, within minutes, other Bush-loving bloggers were linking to it and saying how it proves that Bush’s behavior really was legal and proper. And that intellectual whoring in allegiance to George Bush (rather than to the country) repeats itself over and over outside of the blogosphere as well.

That’s because the objective isn’t to determine whether the Administration really did act illegally. The point is to defend the President no matter what he does and then find justification for his behavior after the fact.

And it is this slavish devotion to authority and to the President as Supreme Leader which the Administration is counting on. They have now advanced a theory of Presidential power so radical and extreme that it really is not hyperbole to call it tyrannical. The power the Executive is claiming for itself is the power of a monarch. And the President has now obviously decided to proudly proclaim his right to exert this power and is daring anyone to stop him. As Digby put it:

The press simply has to step up. This is serious shit; it's not about ancient land deals in Arkansas or lying about infidelity. This isn't about "sending a message." It's real and its dangerous. This democracy is dying the death of a thousand cuts and in this world of too much information, over stimulation and endless distractions we must depend upon the press to wake up and start telling the American people what they know. The president is asserting a new interpretation of the constitution and unless this country makes it very, very clear that we will not stand for it, we are in deep trouble. This won't happen unless the media does its job and tells the country the truth:

The president broke the law, admitted it and says that he will continue to do so. He did this because he believes that the president has the right to break any law he chooses in his capacity as commander in chief.

Does that sound like America?


Now that the Administration has signaled what it wants its followers to say (i.e., not that the Administration complied with FISA, but that it didn’t have to), they will, like dogs sniffing for food, immediately switch trails and start echoing that defense. The problem - the real danger - is that they will never for a moment consider whether the Administration really has broken the law here, and whether that is something that ought to be opposed and condemned by Americans. They begin with the premise of George Bush as infallible leader, the beacon of integrity and goodness, and nothing gets in the way of that view.

That's why the Administration can actually say explicitly that it violated FISA but that it had good reason for doing so. And the image of George Bush as Our Protector and Good Father is so ingrained in the minds of so many that they even trust him to break the law in order to protect us -- for our own good. Some of them are even calling for the imprisonment and execution of those in the press and elsewhere who committed treason by bringing this illegal behavior to light, a threat raised oh-so-subtly by the President himself when he accused the media of acting improperly and helping our enemies by reporting on this lawless surveillance.

This story is going to fade away in a couple of days, just like all of the other "scandals" have. And the envelope of unchecked Executive power will be pushed further and further. Each time it is pushed successfully, it is a guarantee that it will be pushed again. And although one would like to be able to say that there is something visible that appears ready and able to put a stop to it, it is very difficult to say what that would be. The compliant, lazy, access-desperate press? The tepid, intimidated and powerless Democrats? Republicans who finally decide that they have had enough? A judiciary that has been packed for the last five years with judges who revere Executive power with still more judicial reverence to come?

To recite the possibilities is to illustrate the anemic opposition which the Administration continues to face as it institutionalizes its radical theories of executive power one fleeting scandal at a time.

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