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.

Wednesday, December 28, 2005

The Administration's "very bad people" defense

In order to mollify fears sparked by its illegal eavesdropping on American citizens, the Administration has returned to League of Justice cartoons as its touchstone for defending itself. Here is White House spokesman Trent Duffy telling us yesterday why we should just stop with all this fuss about the Administration's FISA-violating eavesdropping on American citizens:

This is a limited program. This is not about monitoring phone calls designed to arrange Little League practice or what to bring to a potluck dinner. These are designed to monitor calls from very bad people to very bad people who have a history of blowing up commuter trains, weddings and churches.

As a preliminary matter, it really is amazing how the White House continuously talks to Americans the way a third-grade teacher explains to his 8-year-old students why Johnny had to go to the principal’s office – because he was "very bad." This cartoonish lecture – about how we shouldn’t worry that the Administration is engaging in illegal, rights-infringing conduct because they’re only doing it to the "very bad people" -- is the same one which they trot out, with great success, whenever they want to justify their lawless behavior, from their torture policies to Jose Padilla’s indefinite incarceration in a military prison. Since they’re breaking the law and violating basic Constitutional guarantees only for The Very Bad People, why would any Good Person object?

There are several obvious problems with this self-justifying theory. The first is that it’s based on patent falsehoods. Are we now supposed to believe that the Administration has only eavesdropped on "very bad people who have a history of blowing up commuter trains, weddings and churches." If the Administration is actually aware of the identity and location of people who have committed such murderous acts -- which they would need to be in order to eavesdrop on their conversations -- wouldn’t they be (at least) arresting them?

And if the people on whose conversations they want to eavesdrop are people "who have a history of blowing up commuter trains, weddings and churches," are we supposed to believe that they could not obtain, with great ease, FISA warrants to do so? If -- as Duffy now claims -- the only goal which the earnest, innocent Bush Administration had was to eavesdrop on "very bad people who have a history of blowing up commuter trains, weddings and churches," then all of the excuses offered up thus far as to why FISA was inadequate – e.g., because the Administration actually wanted to engage in sweeping surveillance on everyone, because FISA’s "probable cause" standard is too restrictive – make no sense.

It’s quite a dilemma the Administration has created for itself. The narrower the Administration defines the scope of its surveillance targets (in order to soothe concerns about its eavesdropping), the more impossible it becomes to justify why it had to eavesdrop outside of the law.

Second, while there are some individuals who unquestionably qualify as "very bad people" -- the ones, for instance, "who have a history of blowing up commuter trains, weddings and churches" -- there are many others who are considered by the Administration to be "very bad" who likely are not. Administrations of both parties have a natural tendency to view individuals with radical (though legal) political agendas or even garden-variety political opponents as "very bad people."

Our country has a long and sordid history of the Executive branch abusing its considerable powers to fight against "very bad people" by recruiting those powers in service of its own agenda, and not the interests or security of the country. This was exactly the right-wing complaint against the Clinton Administration's attacks on Randy Weaver and David Koresh, not to mention the Republicans' now-conveniently-forgotten pious tributes to the sanctity of the rule of law when it came to Clinton's law-breaking.

Similar complaints of executive abuse of such powers were made against every Administration since at least 1960. The collective distrust that arose from those abuses is precisely why the country enacted laws requiring that powers such as secret eavesdropping be exercised only with judicial approval or other such safeguards, rather than in secret by an unchecked Executive acting alone.

The real point here is that we don’t have a system of government – or, at least, we didn’t – where the President can unilaterally decree, with no trial or due process, that certain individuals are in the category of "very bad people," who then, by virtue of their inclusion in that category, can be stripped of all of their constitutional protections or have the Government act against them in violation of the law. It is always worth remembering that in the Padilla case, this Administration expressly claimed for itself this most ominous of powers -- the power to violate the constitutional rights of American citizens by, for instance, incarcerating them indefinitely and with no due process, literally based on nothing more than the President’s secret, unilateral, unreviewable decree that someone is an "enemy combatant" (legalese for "very bad person").

That is the same definitively authoritarian theory on which the Administration’s explanation here is based. Duffy’s statement amounts to yet another decree that the President can violate the law and eavesdrop on any citizen as long as he decides – alone, in secret and with no oversight – that someone is a "very bad person." That is not hyperbole or distortion; that really is the Administration’s position -- that we should not worry about this lawless eavesdropping on Americans because the only ones whose communications are being invaded are the ones whom George Bush thinks fall into the "very bad people" category. That reassurance can comfort only the (admittedly sizable) portion of the population which places blind faith in George Bush.

Similarly, it is a very broad area which lies between, at one extreme, "phone calls designed to arrange Little League practice or what to bring to a potluck dinner" (which the Administration claims, credibly, it was not interested in hearing) and, at the other extreme, phone calls from "very bad people to very bad people who have a history of blowing up commuter trains, weddings and churches." Duffy claims that the Administration’s lawless eavesdropping program was "designed" to listen in only on the "very bad people’s" communications. But that is not, of course, the same as saying that it was only on such conversations which the Administration actually eavesdropped.

We still don’t know whether the Administration really did confine its eavesdropping only to the "very bad people." We don’t know this because the Administration: (a) refuses to tell us on whose communications they eavesdropped and (b) failed to comply with the law which was designed to prevent abuse by requiring judicial approval for such eavesdropping (and which made it a criminal offense to eavesdrop without it).

What is and must remain clear is that the Administration’s latest excuse for its illegal eavesdropping -- that it only did this to the "very bad people" -- is both incredible and, most importantly, irrelevant. It is incredible because there was no need whatsoever to operate outside the law if the only eavesdropping targets were the "very bad people." And it is irrelevant because illegal behavior is still illegal even if the law is broken only with regard to people whom the law-breakers believe to be "very bad."

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