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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.

Sunday, January 01, 2006

Breaking the Daou Cycle: Conservative opposition to Bush's law-breaking

Peter Daou’s recent description of the 10 steps which lead to the inconsequential fading away of every Bush scandal has received substantial attention, and deservedly so. When reading it, one can instinctively recognize that it accurately outlines how George Bush has survived scandal after scandal – including ones which, by themselves, would have sunk a President who was not protected by such an efficient scandal-repelling machine.

While Daou predicts that this cycle will similarly consign the NSA scandal to irrelevance, it is becoming clear that this scandal is actually deviating from Daou's cycle and, I believe, will continue to deviate even more as more facts are revealed. The cycle is primarily breaking down – not yet entirely, but already quite noticeably, and certainly much more so than ever before – at Daou's Steps 4 and 5 (where virtually all Republicans fall in line behind Bush and read from the Bush-defending script). The controversy arising from Bush's claimed power of law-breaking is plainly not ideologically-based, and as a result, there is nothing even close to unanimity of Republican opinion in defense of George Bush.

Quite the contrary. There are now aggressive criticisms of Bush’s conduct coming from his own party, and the criticisms are not confined to the standard, isolated, pseudo-maverick McCain/Hagel precincts. We are seeing not just widespread Republican discomfort in defending the President here, but affirmative criticisms of the President even from many of his most steadfast supporters, who are making clear that George Bush broke the law and has no right to do so.

What matters more than anything else is keeping the focus exclusively on what this scandal is about. This is not about eavesdropping, or warrants, or the Fourth Amendment, or privacy. This scandal raises all of those issues secondarily, but that is not what this scandal is about. This scandal matters so much because George Bush broke the law and is vowing to continue to break the law because his lawyers have created legal theories which contend that the President during "wartime" has the right to break the law. As both Digby and Mark Kleiman have noted, this scandal is -- from beginning to end -- about law-breaking and, more specifically, the fact that the President of the United States really is claiming the power to break the law, not just in this instance, but generally.

As a result, the only way to defend George Bush is by arguing that he has the right to disregard the law – a premise so intrinsically alien to the most ingrained American principles, regardless of political ideology, that all but his most slavish supporters will be highy reluctant, if not outright unwilling, to defend him here.

Every discussion of this scandal should begin by emphasizing that: (a) FISA expressly makes it a criminal offense to eavesdrop without complying with its mandates and (b) even the President and his lawyers acknowledge that the eavesdropping Bush ordered does not comply with the mandates of FISA. Bush ordered his Administration to act contrary to the requirements of this law, and nobody, including Bush, claims otherwise.

What Bush supporters are arguing is not that the eavesdropping complied with FISA. Given the crystal clear language of FISA, not even they are brazen enough to try that. Instead, what they are arguing (.pdf) is that they were allowed to eavesdrop in violation of the law -- either because (a) other laws (AUMF) which don't mention FISA or eavesdropping should nonetheless be "interpreted" to allow him to violate FISA, or (b) as a wartime President he has the right to violate laws like this. Whatever else one wants to say about those theories, they are theories which argue that Bush has the right to act outside of the eavesdropping law. Thus, the only question that this debate really entails is whether George Bush has the right to violate laws like FISA, because even he admits that he ordered eavesdropping "outside of" the law.

It is becoming increasingly difficult to depict this scandal as some sort of partisan bickering or as a by-product of anti-Bush liberalism because more and more conservatives and even steadfast pro-Bush supporters are acknowledging that, at the very least, there is a strong argument that he broke the law. The signs are unmistakable, and ought to be seized on.

I’ve been an hopeless addict of the Powerline Blog long before I even started this blog, because I find it genuinely fascinating how far they are willing to push the Bush-worship envelope, how they will never even hint at an inkling of a possibility that George Bush is wrong about anything or has done anything improper or that his critics are ever right about even small things. Never, ever. They plainly don’t see themselves as citizens holding their government officials accountable, but rather as lawyers zealously devoted to only one cause -- justifying the conduct of their client no matter what, and their client is George Bush.

That’s why it was so jarring and truly shocking to read that Paul disagrees with the other two Bush fanatics (literally the only time I’ve seen that happen) because Paul has confessed that there is a good argument to make that George Bush broke the law:


I think it's well-settled enough that, in the absence of a congressional enactment purporting to limit him, the president has the constitutional authority to carry out warrantless surveillance to obtain national security information. But if Congress purports to limit this power, thus creating the situation where Justice Jackson viewed the president's power as weakest, I think the issue is open.

And it wasn’t just some momentary lapse of obedience on Paul’s part, because he repeated much the same thing yesterday when expressing disagreement with the "Bush-did-no-wrong" Wall St. Journal Op-Ed by Robert F. Turner, in the process relying on conservative law Professor Orin Kerr's conclusion that Bush broke the law:

Orin Kerr at the Volokh Conspiracy responds to the Wall Street Journal column by Robert F. Turner regarding the legality of the NSA intercept program. Kerr believes, as I do, that the question of whether the program violates FISA is a difficult one, and that the answer depends on details about the program that we mostly don't know. However, Kerr contends that if the intercept program does violate FISA, it cannot successfully be defended on the theory that FISA is an unconstitutional usurpation of the president's inherent authority under Article II. According to Kerr, the question isn't even close. . . . As such, I can't say that either side would have a slam dunk case if it turned out that the intercept program violates FISA.

It’s true that Paul is not saying that Bush broke the law, only that it’s an "open question" - but that really is like a defense attorney suddenly ceasing to defend his client in open court and declaring his client’s guilt to be "an open question." When one's own attorney admits the real possibility of guilt, that is a rather strong indictment. To even read on Powerline that it is an "open" and "difficult" question whether George Bush broke the law is amazing, and quite revealing.

Conservative condemnation of Bush’s illegality is growing. Hardcore conservatives with unimpeachable conservative credentials, from Bob Barr to Reagan Justice Department official Bruce Fein have aggressively argued that Bush’s conduct is intolerably illegal and dangerous. To get a sense for what a Conservative True Believer Fein is, this is what he said in February of this year:


President George W. Bush should pack the United States Supreme Court with philosophical clones of Justices Antonin Scalia and Clarence Thomas and defeated nominee Robert H. Bork. Multiple vacancies will inescapably arise in his second term. Senate Republicans should vote against the Senate filibuster rule as applied to thwart a floor vote for judicial nominees unconstitutional and unenforceable.

That’s the same Bruce Fein who, in dismissing Bush's legal defenses as "nonsense," is now arguing that:

Congress should insist the president cease the spying unless or until a proper statute is enacted or face possible impeachment. The Constitution's separation of powers is too important to be discarded in the name of expediency.


There are plenty of others, from right-wing bloggers to pro-Bush pundits, who have been similarly aggressive in their criticism of George Bush’s illegal conduct. And even Republican senators have increasingly expressed real concern about Bush’s belief that he has the power to violate the laws they pass.

All of this is being noticed in the pro-Bush circles, whose members love to depict every Bush scandal as nothing more than the fevered paranoia of "liberal critics," but have been forced to acknowledge that the criticisms of Bush here go beyond that, to include, as Cliff May sneeringly put it, "the left and their libertarian allies" (even life-long conservatives who criticize Bush instantaneously cease to be "conservatives" by virtue of the well-known and slightly-amended Digby axiom: "'Conservative' is a magic word that applies to those who are in other conservatives' good graces. Until they aren't. At which point they are liberals" [or "libertarians"]).

And the revelation yesterday that even Bush’s own political appointees in the Justice Department expressed serious reservations about the program’s legality -- to the point where the number 2 official at Bush's DoJ refused to authorize it -- should, by itself, preclude anyone from claiming that the view that George Bush broke the law is some sort of hysterical left-wing hyperbole.

There will, of course, continue to be those shrill voices whose reverence for George Bush and belief in his infallibility really is the stuff of a creepy personality cult, to the point where they actually believe that when a newspaper reports on illegal behavior by Bush officials, the real outrage is that the newspaper is acting seditiously and the paper and their sources should be punished as criminals. It's the same mentality driving those who still insist that there really were WMDs in Iraq. Tbogg begins the New Year with a thorough examination of this genuinely disturbing/disturbed mentality.

(And in that regard, one should extend a hearty New Year’s congratulations to Instapundit, who has always precariously hid behind a thinly veiled pretense of open-mindendess where Bush was concerned. With the New Year, he has apparently resolved to rid himself of that play-acting, and thus proudly declared this morning that he is a card-carrying Bush cult member by arguing that the one and only culprit in this whole NSA matter is . . . The New York Times, for damaging national security by reporting on Bush's illegality.)

But this mindset has been shrinking, discernibly, in the last year. Former Bush loyalists are now, in droves, expressing discomfort or worse with George Bush generally and specifically with his claimed right to break the law, and that is something we have not seen before. It is a clear and hopeful deviation from the scandal-suffocating cycle described so astutely by Peter Daou.

Conservatives who still believe in something beyond George Bush ascribe, genuinely, to a belief in the rule of law and to real limitations on the powers of the Federal Government – the two principles most directly under assault by the Administration’s illegal conduct and by the accompanying Yooian theories of the Omnipotent Unchecked Executive who wields the right to break the law.

And beyond that, Americans of every ideological stripe have an instinctive aversion to political leaders who claim the right to break the law. That is not a naive aspiration. These are deeply ingrained political principles, drummed into us from the time we first attend school. Those are the values which pervade every discussion of "America," the founding fathers, the Constitution. Even Americans who agree on nothing else know, even if only on the most submerged and basest levels, that what distinguishes America from other countries and what keeps us safe and secure in our liberty is that nobody, including the President, is above the law. People know that the claim that someone should be above the law is the mark of a tyrant claiming a power that is as arrogant and dangerous as it is un-American.

Those are the values under assault with the NSA scandal. Complex Fourth Amendment claims or counter-intuitive, legalistic arguments that abstract rights of privacy should trump our security are going to get Bush critics exactly nowhere. But emphasizing the universal and most deeply ingrained values which hold that we are a nation of laws and that nobody is above the law -- values which are even causing steadfast Bush supporters to criticize the Administration’s lawlessness here – clearly has the power to smash the Daou cycle. And the more it is emphasized that there are scores of non-liberals and non-partisans who are refusing to acquiesce to George Bush’s lawlessness, the more potent those arguments will be.

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