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, January 02, 2006

What happened to the conservative legal approach?

Susie Madrak observes that the Constitution (and other laws) sure do seem quite "flexible" in the hands of those seeking to defend George Bush -- a particular irony given how stridently they rail against such legal theories in other contexts. And the defenses being dredged up to justify Bush’s law-breaking certainly are notable for the liberties they take with traditional and "conservative" principles of legal argument.

Thus, we have one argument being advanced by the DoJ on Bush’s behalf which claims that a statute (AUMF) which never mentions FISA, eavesdropping or surveillance should nonetheless be "construed" to have "impliedly" amended FISA by giving Bush an "exception" to its mandates. And this argument is made even though the Congress which supposedly gave that exemption says that they did no such thing, but to the contrary, expressly refused to give that authority.

And then we have the second Bush-defending argument: a dressed-up Constitutional theory which claims that George Bush has the "inherent" authority under Article II of the Constitution to violate Congressional law and eavesdrop on American citizens with no warrant – even though nothing in Article II mentions or even references the power to eavesdrop, the power to engage in surveillance, or the right to violate Congressional statutes. Indeed, the only express clause in Article II which seems to relate to this controversy is one that would rather strongly undercut the claim that the President has the right to violate Congressional law. That’s the part mandating that the President "shall take Care that the Laws be faithfully executed . . . "

So much for plain language and original intent. Who has time for those fancy constructs when George Bush needs defending? What we have in their place are implied, hidden amendments to laws which are silently buried in other laws which don’t even reference the law which was supposedly amended. And that's backed up by a claim of Executive powers which are lurking quietly somewhere in Article II of the Constitution, maybe hiding behind some penumbras or sprouting from the evolving, breathing document.

What we really have from these paragons of Judicial Restraint is everything except plain language and original intent – the very tools of construction which these "conservatives," when not concocting legal defenses to save George Bush, claim that they believe in. That’s because the plain language of the law makes clear that George Bush broke it ("A person is guilty of an offense if he intentionally— (1) engages in electronic surveillance under color of law except as authorized by statute"), so "plain language" is not as attractive a concept any more.


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