Rules of polite Washington discourse
The far more difficult question is the implication of Taylor's ruling. If this court is upheld or other courts follow suit, it will leave us with a most unpleasant issue that Democrats and Republicans alike have sought to avoid.
Here it is: If this program is unlawful, federal law expressly makes the ordering of surveillance under the program a federal felony. That would mean that the president could be guilty of no fewer than 30 felonies in office. Moreover, it is not only illegal for a president to order such surveillance, it is illegal for other government officials to carry out such an order.
For people working in government, this opinion may lead to some collar tugging. If Taylor's decision is upheld or other courts reject the program, will the president promise to pardon those he ordered to carry out unlawful surveillance? The question of the president's possible criminal acts has long been the pig in the parlor that polite people in Congress refused to acknowledge.
Legal battles which involve the government typically are waged over abstract questions as to whether a particular government action (a new law or a President's order) is invalid as being unconstitutional. While such battles can generate substantial emotion, they do not typically implicate government officials personally.
But the FISA ruling from Judge Taylor is of a much different nature. The question being decided by NSA cases is, effectively, whether George Bush and his top officials, along with those at the NSA following his orders by eavesdropping without judicial approval, are guilty of felonies. As Professor Turley notes, very few people actually believe the answer to that question is difficult to discern:
While Atty. Gen. Alberto Gonzales insists that the legal authority for the program is clear and filed a notice of appeal with the 6th U.S. Circuit Court of Appeals, few experts outside of the Bush administration support the program. To the contrary, federal law seems perfectly clear in prohibiting warrantless surveillance.
This has been the most bizarre part of the NSA scandal all along: the President got caught red-handed violating an extremely clear law -- he admitted to engaging in the very behavior which that law says is a felony punishable by up to 5 years in prison and a $10,000 fine -- and yet official Washington (the political and pundit classes) simply decided to pretend that wasn't the case.
They agreed to acquiesce to the administration's fiction that there are some sort of complex and difficult legal questions with which one must grapple, and that only shrill partisans say that the President is violating the criminal law. And thus, a Washington ruling class which reveled in subpoenas and criminal investigations over such towering matters as Whitewater, Vince Foster and Monica Lewkinsky has collectively decided that talk of criminality on the part of the President for how he is spying on Americans is imprudent and unserious.
The Justice Department lawyers who approved this illegal program, the political officials who ordered it, and the journalists who defended it (and have enabled this presidency) are all part of the same circle, and the very suggestion that any of this is actually criminal -- even though it is all being done in violation of the crystal clear criminal law -- is just too unpleasant, too unruly, too disruptive to admit. As Turley puts it: "The question of the president's possible criminal acts has long been the pig in the parlor that polite people in Congress refused to acknowledge."
But Judge Taylor's ruling -- with its very un-Beltway irreverence towards the President, and free of the fear of describing the President's lawbreaking as what it is -- is forcing that question out into the open, which is what explains so much of the hostility towards Judge Taylor. This judge, unknown to the Important People in academia and the political power centers, sitting in her little Detroit courtroom, has broken the rules. She used language which is uncouth (she pointed out the obvious -- that this President has pretenses to being a King) and refused to pay homage to the false orthodoxy that there are really difficult questions triggered by the President's refusal to abide by the criminal law. How irresponsible, unscholarly and unserious she is.
This is the same mindset that has placed off limits any real accounting for the abject disaster that our country has been lead into in Iraq. Official Washington won't accept any emphatic declarations of guilt over what happened because virtually the entire Washington establishment endorsed the invasion of Iraq, continued to defend the occupation, and is thus responsible for it. Thus, it's acceptable to offer polite and muted criticisms of those responsible, but they are not to be castigated or stigmatized in any way for their horrendous misjudgments and ongoing deceit.
Those who advocated the invasion of Iraq and made one false statement after the next about this war over several years are still respected wise experts whose wisdom still should be listened to, despite their little mistake which is perfectly understandable and not, in any way, a sign of any real flaws in character, intellect, integrity or judgment. That is what responsible, serious people have decided, and only shrill partisan hysterics speak in more direct or accusatory tones about what happened in Iraq. Demanding accountability for those responsible for it, or believing that those who most aggressively advocated this war ought at least to suffer a loss of credibility and status, is the just partisan, angry bile that is really unwarranted and unhelpful.
That is exactly what is driving the reaction to this court ruling as well. Notwithstanding all of the professorial angst-ridden deliberations, the NSA scandal is and always has been extremely simple. Congress, by an overwhelming bipartisan majority, passed a law 30 years ago making it a felony to eavesdrop on Americans without warrants and George Bush got caught violating that law -- a law nobody ever suggested was invalid until he got caught violating it. People who violate criminal laws are criminals, even if -- at least in the United States -- they hold high government positions. In decisive and unapologetic tones, Judge Taylor ruled -- consistent with the consensus of most legal experts -- that the President has been continuously breaking the law without any excuse, and that is something which our pundit and political classes simply want to ignore.
UPDATE: In rather stark terms, Jim Henley reacts to the calm, casual acknowledgment this weekend by leading Iraq war advocate Ken Pollack that Iraq is consumed by a civil war, a recognition Pollack is able to make on the Op-Ed page of the Washington Post, because he is still deemed an Important Foreign Policy Expert:
Ken baby, it’s your civil war as much as anyone’s. Pollack did more than anyone to encourage the famous “liberal hawks” to provide the bipartisan patina so useful in getting the Iraq invasion started. In the Army, someone would have long since left him alone in the study with a pistol and the discreet interval required to make the only appropriate gesture of regret, genuine atonement being impossible under the circumstances. In Japan he’d be a picture of the different ways light reflects off entrails and cutlery. In Washington, he gets to write new articles, as if he were an epidemiologist and not Typhoid Mary.
Bill Kristol, Charles Krauthammer, Newt Gingrich, Dick Cheney and on and on -- all of them treated by the national media as Important, Wise, Serious foreign policy figures despite their being fundamentally and recklessly wrong about virtually everything with regard to our Iraq disaster. The one thing which the permanent Washington class does not want is accountability -- not for tragic errors, not for lawbreaking -- because being held accountable is the one real threat to their fiefdoms.
UPDATE II: Via Atrios, Tom Tomorrow has a cartoon which illustrates this sad dynamic perfectly.