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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.

Thursday, November 30, 2006

Rule of Law 101 and Neoconservatism

Last year, the Bush administration and the GOP-led Congress jointly created a 5-person, tootheless, subpoena-less "panel" to monitor how "civil liberties issues" are handled as part of the "war on terror." They handpicked five members and, after a year-long delay, Bush officials recently "briefed" them about the NSA warrantless eavesdropping program and all of the great privacy protections they say they provide when eavesdropping on American citizens in violation of the law.

In a shocking and completely unanticipated development, The Boston Globe reported yesterday that the handpicked "members say they were impressed by the protections." One of the panel's appointees in particular, former Clintonite and current neoconservative Lanny Davis, did what he has come to specialize in -- namely, attack Bush critics and lavish the Bush administration and its allies with the most obsequious praise possible so as to enable an illusion of "bipartisan" support (which is, needless to say, precisely why Davis was chosen for this august panel). Davis said:

If the American public, especially civil libertarians like myself, could be more informed about how careful the government is to protect our privacy while still protecting us from attacks, we'd be more reassured. . . .

The announcement by Lanny Davis that he and his fellow Republican panel members are impressed with the program's supposed "privacy protections" has caused a tidal wave of genuinely bizarre declarations of victory among various Bush followers, who seem to think that this is not only relevant to the NSA scandal, but dispositive of it. The list of celebrators includes Captain Ed and Jay Stephenson of StopTheACLU ("Now all of you…do you really think a little truth will get in the way of the tin foil hat wearing brigades like the ACLU and Glenn Greenwald?"), along with Rick Moran at RedState, who wrote:

I have spent much of the last two years on this site railing against the hysterical, exaggerated, and ultimately dishonest charges made by people like Glenn Greenwald and others that the Bush Administration was tearing apart the Constitution and trying to set up some kind of a dictatorship. . . .

Wonder where the public got "an underappreciation for the degree of seriousness the government is giving these protections...?" Couldn't be from leftist lickspittles like Greenwald et.al. who've spent much of the last 5 years trying to convince the American people that Adolf Hitler was in the Oval Office and Nazi gaulieters were staffing the Justice Department, could it?

Just thinking about the smug, self righteous louts who have hindered every single program, every single effort to protect the people of the United States by constantly raising the specter of Hitler and dictatorship makes me sick to my stomach.

It is truly astounding to watch people incapable of understanding the point that the reason it is wrong and dangerous for the President to eavesdrop on Americans without warrants is because doing so is against the law. Shouldn't that be a simple enough proposition that every functioning adult ought to be capable of understanding it? It doesn't mean that everyone has to agree with that proposition -- if people want to continue to cling to the theory that the President is unbound by the law concerning matters of national security, obviously they are free to do so.

But there is no excuse for failing to comprehend the objections to the President's behavior, particularly since the central objection is not all that complicated. To the contrary, it is what we all learn in seventh-grade civics.

One more time: the principal problem with the President's warrantless eavesdropping is not that he is abusing the secret eavesdropping powers he seized (that is something we do not yet know, because the Congress has not yet investigated that question). Instead, the "problem" is that the President is engaging in the very conduct which the American people, through their Congress almost 30 years ago, made it a felony to engage in, punishable by up to five years in prison -- that is, eavesdropping on Americans without judicial oversight.

Thus, even if Lanny Davis and the other Republicans on the panel think the President is using his illegal powers carefully, his conduct is no less illegal. Why is it necessary even to point that out? This has been the obvious and paramount point from the beginning, as I wrote in my book (at pages 25, 60) (emphasis in original):

The heart of the matter is that the president broke the law, deliberately and repeatedly, no matter what his rationale was for doing so. We do not have a system of government in which the president has the right to violate laws, even if he believes doing so will produce good results. . . .

The NSA eavedsdropping scandal, as its core, is not an eavesddropping scandal. It is a lawbreaking scandal . . .

Fortunately, several bloggers -- Anonymous Liberal, Gavin at Sadly, No and "meatbrain" -- have superb and comprehensive posts responding to this emerging Bush-follower-claim, thus sparing me the task of having to explain, yet again, what used to be the unremarkable premise that in our system of government, the President does not have the right to violate the law, no matter how well-intentioned he thinks he is when doing so. As A.L. put it:

In a system that operates according to the rule of law, what matters is what the law says, not what Lanny Davis or the other members of some meaningless ad hoc council think. The fundamental issue here is not what sort of privacy protections the NSA program does or does not provide; the problem is that the NSA program does not comply with the law. . . .

This prohibition is categorical, and the Bush administration has no legal justification for disregarding it, particularly in light of Hamdan, which was precisely on point.

This is a BIG DEAL. A constitutional system of government cannot tolerate a chief executive who operates outside of the law, even if, in doing so, he implements policies that Lanny Davis thinks are swell. There is no 'Lanny Davis exception' to the rule of law.

That enables me to focus instead on another aspect of this story which I think is vitally important. What made this story so enticing to Bush followers is that it was "Democrat" Lanny Davis who paid homage to the great and benevolent ways in which the Leader is protecting us, as though that lends the claim some sort of extra credibility. After all, Davis is a Democrat, and he says that the President is doing nothing wrong, so that settles the issue once and for all.

But as I've argued several times before, it is no longer the Democrat-Republican distinction -- nor the "liberal-conservative" dichotomy of the 1990s -- which is the accurate barometer for predicting the views someone has regarding the most important national security and foreign policy questions facing our country (which includes domestic surveillance and law-enforcement programs justified in the name of national security).

In the wake of the 9/11 attacks, neoconservatism (defined here) has become the predominant ideology driving our government's policies in these areas, and it is the extent to which one embraces or rejects those views -- not whether one is a Democrat/Republican or "liberal/conservative" -- that is the real determinant for where one falls on the political spectrum, particularly with regard to matters of war, terrorism and related policies.

That is why "Democrat" Joe Lieberman's most vocal supporters were not "moderate" Republicans, but rather, the most extreme neoconservative Bush followers -- the Sean Hannitys and Michelle Malkins of the world. Just like Joe Lieberman, Lanny Davis (who was one of Lieberman's most vocal supporters) is a full-fledged neoconservative. The way he stays relevant is by offering himself up as the token Democrat who can always be counted on to defend the Bush presidency and attack Bush critics. Again, that is why he was chosen for this panel and it is why his extremely predictable praise for the President (as predictable as if his spot had been filled by Rush Limbaugh) is as meaningless as it is besides the point.

On the issues that matter most, the 9/11 attacks and the radicalism of the Bush administration have created a fundamental realignment in our political system. Ignoring that realignment by itself creates all sorts of misguided analysis.

This "pro/anti neoconservatism" realignment is what explains why former Reagan Justice official Bruce Fein and conservative Congressman Bob Barr are among the most eloquent Bush critics. It is why former Reagan official Jim Webb is a Democrat. And it is why Al Gore's 2000 Vice Presidential running mate, Joe Lieberman (and his comrades like Lanny Davis, or Joe Klein, Marty Peretz, and numerous other "liberal" war-and-Bush-supporting pundits), aren't, at least not in the way that the Bush administration wants to exploit the "Democratic" credentials of the Lanny Davis's to suggest that there is something surprising or meaningful about his support for the administration's policies.

Davis' support for the NSA warrantless eavesdropping program is no more surprising and no more meaningful than Michelle Malkin's support for that program would be, or Joe Lieberman's. On these issues, despite Davis' and Liberman's alleged "liberalism" on the "1990s issues," they are all one and the same. They embrace neoconservative principles -- both abroad and domestically -- and they are on the same political side, not the opposite side, of the Bush administration with regard to these issues. Clarity in political analysis requires a recognition of that realignment and an appreciation for what the Joe Liebermans and Lanny Davis's are, and what they are not.

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