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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.

Monday, December 11, 2006

Exploring the distinction between "legal" and "illegal"

(updated below)

It was reported over the weekend that the CIA was secretly eavesdropping on the telephone conversations of Princess Diana on the night she died in Paris in 1997. Former Bush speechwriter David Frum, over at his National Review blog, thinks that this revelation makes some sort of point about the objections to President Bush's warrantless eavesdropping on American citizens inside of the U.S.:

So the Clinton administration was tapping Princess Diana's phones. Repeat after me: the Clinton administration. And of course there was no warrant. . . .

So question: when will we hear from all those valiant defenders of the civil liberties and personal privacy trampled underfoot by the fascist Bush administration? Slate magazine, you who boldly dared to compare Republicans to Nazis - where are you?

George Soros? Glenn Greenwald? Rob Reiner? Sidney Blumenthal? Al Franken? And will the mass media take their familiar ominous view of this outrageous intrustion (sic)? Will the editorial pages denounce the unilateralism and arrogance and high-handedness of the departed administration? I'm sure we're all breathless with uncertainty.

Of course these persons and others like them might reasonably answer that there might be many excellent reasons for the United States government to wish to monitor the activities of the ex-wife of the heir to the British throne. . . . Still you do have to wonder why such common sense seems to ebb and flow according to whether the president doing the wiretapping has a (D) or (R) after his name.

This petulant, adolescent, self-victimizing cry of persecution -- Republicans are treated so unfairly, and people always complain when we do something that they let the Democrats do -- has become virtually automatic in the parlance of Bush followers and neoconservatives. It's almost reflexively inserted into any political argument they make. And it's virtually always as baseless as it is trite. Frum's argument here provides an excellent illustration of why that is so.

If Frum tries hard enough, he may be able to find a difference between these two eavesdropping stories beyond the fact that one involves a (D) and the other involves an (R). How about . . . . . what the Clinton administration did is perfectly legal, while what the Bush administration did (and is doing) is a criminal offense under American law? Might that explain the acceptance of the former and the objections to the latter?

The "warrants" to which Frum refers are required under the law we call "FISA" only when (roughly speaking) the conversations to be eavesdropped on involve (a) a "U.S. person" who is (b) inside the U.S. Princess Diana, sitting in Paris, was neither (a) nor (b), and therefore, the CIA did not need a warrant under "FISA" to eavesdrop on those conversations. Thus, that eavesdropping was "legal."

By rather stark contrast, President Bush is eavesdropping on conversations without warrants for which FISA explicitly requires warrants, and what he is doing is therefore "illegal." In general, there is a difference between a legal act and an illegal act. In particular, the latter tends to provoke more protests than the former.

Further, "illegal" acts -- such as warrantless eavesdropping on Americans -- are even punishable by imprisonment, whereas "legal" behavior is not. That's because the U.S. is a country that was founded to exist under the "rule of law," where "legal behavior" is allowed but "illegal behavior" is not.

What is so very odd about Frum's complete disregard for the distinction between "legal" and "illegal" behavior is that he previously not only understood the distinction but was one of our nation's most intrepid defenders of the rule of law. Here he is explaining why he felt compelled to speak out in 1998 in the pages of The Weekly Standard, urging the impeachment of President Bill Clinton:

During the Lewinsky scandal, those of us on the pro-impeachment side repeatedly said – and said and said and said again – that the offense for which Clinton deserved to be removed was not sexual misconduct, but perjury. . . . In other words: the idea that sex ought never to be subject to moral scrutiny was what was at stake for Clinton’s defenders. For those of us on the other side, what was at stake was the rule of law and the integrity of the presidency.

Indeed, those were stirring words in defense of the "rule of law." Yet now, Frum not only exhibits complete indifference towards the rule of law, he actually fails even to recognize it as an issue. He literally is either unaware or pretends not to know (I'd honestly like to know which?) that opposition to presidential lawbreaking (rather than legal eavesdropping) is the objection to President Bush's warrantless NSA eavesdropping on Americans.

I genuinely hope Frum will answer that earnestly posed question, because he used to be such an ardent and vigorous supporter of the rule of law, and we need more of those. It would be deeply disappointing to think that his opposition to illegal behavior is dependent upon whether the lawbreaker "has a (D) or (R) after his name."

UPDATE: Frum replies here. Other than mischaracterizing my argument (I didn't call Bush's eavesdropping "fascist," only "illegal"), his principal point is that it is premature to refer to Bush's NSA program as "illegal" because the issue is "being litigated as we speak, and pending a final result."

Where: (a) a statute as clearly as can be says that doing X is a criminal offense, (b) someone, by their own admission, does X, and (c) a court rules that the person has broken the law by doing X, then X is, by definition, "illegal." There is nothing "uncertain" about any of that.

Moreover, Frum's attempt to justify Bush's conduct -- "Whether the Bush administration's actions are ultimately approved by the courts or not ["not" means that he broke the law], they were undertaken in defense of the public interest" -- illustrates his contempt for the very "rule of law" principles which he previously claimed to find so sacrosanct. A genuine (rather than cynical) belief in the "rule of law" means, at minimum, that one does not justify criminal behavior by claiming that the lawbreaker sought to achieve good results.

In any event, whether warrantless eavesdropping on Americans is, in fact, illegal had nothing to do with Frum's post. Frum's original argument was that those who object to Bush's eavesdropping without also objecting to Clinton's eavesdropping are revealing themselves to be unprincipled hypocrites driven by partisan considerations. But given the self-evident principle underlying that position -- namely, that such individuals object to the illegality of Bush's eavesdropping, while nobody claims that Clinton's was illegal -- Frum's accusation of partisan-based hypocrisy was frivolous from the start.

The only partisan hypocrisy one finds here is from those who paraded around piously as Advocates of the Rule of the Law throughout the 1990s, but who then spent the last six years justifying systematic lawbreaking as something noble -- as nothing more than "act[ing] overzealously in defense of the nation."

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