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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.

Tuesday, March 07, 2006

If Only the Democrats Weren't Such Lousy Poker Players

By Anonymous Liberal

If the NSA scandal teaches us anything, it's that most Democratic politicians make lousy poker players; they couldn't spot a bluff if their careers depended on it (and they just might).

When the NSA story first surfaced, Karl Rove came out of whatever hole he's been hiding in for the last six months and declared that this issue was a political winner for the GOP. He vowed that Republicans would run on the issue in the upcoming midterm elections.

This was about as transparent a bluff as you will ever see in politics. Perhaps the biggest give away was the fact that the administration had been lobbying aggressively for over a year to keep the story out of the headlines. Politicians don't generally exert such effort trying to keep a story on ice if it's their ticket to electoral success (And please don't tell me their desire for secrecy was driven by national security concerns. To date, no one in the administration has explained how the exposure of this program in any way harmed national security. And, anyway, since when has this administration placed national security concerns above political ones?)

Nevertheless, most Democrats immediately internalized Rove's threat and have been delicately tap-dancing around this issue ever since. They've done this despite the fact that, at every juncture, the administration has made it abundantly clear what a bad hand they're holding.

Let's review the state of play . . .

1) The legal landscape:

To say that the Democrats have the better hand legally is a massive understatement. The legal justifications underpinning the administration's warrantless surveillance program(s) are, at best, bordering on frivolous. The administration has admitted that its primary legal argument--that the AUMF authorized the circumvention of FISA--is nothing more than a post-hoc rationalization which lawyers at the DOJ came up with years after this surveillance started. This legal theory is not only contradicted by the administration's own contemporaneous statements (including those made by the president himself) and openly mocked by numerous Republican members of Congress, but there is strong reason to suspect that the likely author and architect of this legal theory, Jack Goldsmith, does not himself believe that it justifies bypassing FISA.

The administration's backup argument--that Article II somehow prevents Congress from creating rules regarding the surveillance of U.S. citizens within our own borders--is equally meritless (and far more extreme). This argument not only goes against the text of the Constitution, which, among other things, clearly grants Congress the power to make rules governing the military, but it has literally no support anywhere in the case law (and please don't cite that line from In re Sealed Case; it doesn't mean what you think it means). Indeed, you really have to strain to find that the Youngstown line of cases is not entirely dispositive of this issue.

Needless to say, the Democrats should be entirely confident that when and if this issue is ever litigated, their criticisms will be vindicated.

2) The Administration clearly wants this issue to go away:

Despite Rove's bluster, the administration is clearly doing whatever it can to sweep this issue under the rug. Administration water-carriers like Pat Roberts and Bill Frist are working feverishly to prevent the Senate Intelligence Committee from investigating these activities. Frist has even threatened to restructure the Committee to forestall such an investigation, an act which can only be explained by desperation (and a complete lack of shame). This is quite obviously not the behavior of a party or an administration that views this issue as a political winner.

3) This is the perfect wedge issue:

For years the Democrats have been looking for an issue that unites Democrats while dividing the GOP, a reverse wedge issue. As we speak, Republicans and conservatives are engaged in intense internecine squabbling over the legality of the President's activities. Do Democrats really think that the Republican party will be able to campaign successfully on an issue that hopelessly divides them? When was the last time that happened in the history of party politics? If Rove tried this, he would not only have a hard time getting much of his party to go along with him, but Democrats would have no problem finding political cover behind the numerous high profile Republicans and conservatives who have already publicly expressed concern over this issue. The GOP has used this same strategy to great effect over the years. Were the Democrats paying any attention?

4) Polling:

As Glenn has pointed out numerous times, Democrats should be encouraged (not intimidated) by the polling on this issue. Polls show that a plurality of Americans in every state think the President clearly broke the law, and a sizable majority are open to the idea. Several polls have also shown that a majority of Americans believe court orders should be obtained before conducting surveillance. That's pretty impressive considering how little effort the Democratic party has put into educating the public about this issue and how extensive the administration's P.R. campaign has been.

Moreover, the President himself has historically low approval ratings, and most Americans no longer trust him or even like him. This is not 2002. Events over the last year or so have exposed the man behind the curtain. Bush will never again be the Wizard. The fact that a lame duck president with rock-bottom approval ratings is still able to intimidate his opponents is perplexing to say the least.

And last but far from least . . .

5) It's the right thing to do:

It's hard to imagine an issue that is of greater importance than preserving the supremacy of the rule of law and the vitality of our system of checks and balances. Even if this was a quixotic battle, it would still be worth fighting. The theories of power this administration is advocating are radical and dangerous, and if they are not challenged here and now, the precedent that will be set may do lasting damage to our system of government.

Long story short, it seems that most Democrats have, at least so far, badly misjudged the relative strength of their hand and the weakness of their opponent's. They've got pocket Aces with another Ace showing on the flop, and they're still afraid to call an obvious bluff. It's pathetic. Every Democrat should be repeating verbatim what Al Gore said when he spoke about this subject last month, and with the same intensity. It's time for Democrats to stop worrying about how they'll be characterized and to start doing the characterizing. Only the Democratic party could generate coverage like this (courtesy of Tuesday's Washington Post) at a time when the stars are as perfectly aligned as they will ever be for a political party.

If I could communicate one thing to the leadership of the Democratic party, it would be this: It's time to stop fretting and worrying and second-guessing your strategy; it's time to just stand up for what you believe in. People want confidence. They want leadership. They want people who know what they stand for. You've got a great hand. Have the courage to play it.

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