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, January 10, 2006

The law is too annoying to obey

One of the still-unanswered mysteries of the NSA scandal is why the Bush Administration needed to bypass a FISA court which has long been notorious for its rubber-stamping and permissive ways. The decision to violate FISA is particularly mystifying in light of that statute's express allowance for a free 72-hour period of warrantless eavesdropping, which obviously negates the Administration’s initial, principal excuse that the need for immediate eavesdropping required it to violate this law.

Many Bush defenders responded to this problem by simply pretending that the 72-hour window did not exist, thus blithely (and dishonestly) arguing that FISA had to be violated because it does not allow for immediate eavesdropping. Unsurprisingly, the Bush cultists at Powerline relied on this blatant deceit for weeks, until a commentator here, Jukeboxgrad, posted compelling documentation of this ongoing dishonesty.

Jukeboxgrad's comment was then linked to by Crooks & Liars, which has a very energetic and substantial readership. That undoubtedly caused an avalanche of not-very-demure emails to Powerline demanding that it finally address itself to this rather glaring hole in its argument.

It didn’t take long for after that for Rocket John to put up a post explaining why the Administration was justified in violating the law notwithstanding the 72-hour exemption (the first time he even acknowledged its existence). To do so, John dredged up the Byron York article in National Review from a month ago where York argued that the Administration had to violate FISA when eavesdropping because the work required by FISA to obtain warrants is too bothersome to perform:

But there's more to the story than that. In 2002, when the president made his decision, there was widespread, bipartisan frustration with the slowness and inefficiency of the bureaucracy involved in seeking warrants from the special intelligence court, known as the FISA court.

The York article made clear that any claimed delays were not with the FISA court, which signs emergency warrants almost immediately, but with the Administration's own inability to comply with the requirements of the law. Mark Schmitt previously addressed, and obliterated, this excuse quite thoroughly.

It should really go without saying that if there were "widespread, bipartisan frustration" with FISA, it would have been quite easy to change the law, particularly since many FISA-related provisions had just been amended the prior year by the Patriot Act. And it seems that this "widespread, bipartisan frustration" has been forgotten entirely by the people who allegedly experienced it, since no prominent Representatives or Senators has said that FISA was inadequate or should be changed.

And as always, it can’t be pointed out enough that in a society which lives under the rule of law, it is absolutely intolerable for the President to secretly violate laws and then try to explain afterwards why the law that he broke wasn’t a very good law to begin with. That does not excuse illegal conduct at all. It is truly amazing how many times one needs to point that out.

But digging into the deceitful, pompous morass of Powerline is highly unpleasant work. I’ve done a lot of that of late, and I spent this morning working instead on a post about the Alito nomination. The industrious Jukeboxgrad, however, has written two additional superb Comments -- one in response to John’s post on the 72-hour rule, and another on John's updates to his post trying to explain why national security was harmed by the Times' disclosure that the Administration is eavesdropping without judicial oversight rather than with it.

In lieu of having to wade further into the Powerline justifications for law-breaking, I highly recommend these thorough and well-argued responses from Jukeboxgrad.

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