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.

Saturday, February 18, 2006

Posting today

I will be posting at Crooks & Liars today and will post the links here when those posts are available. Until then, here are a couple of quick items of note:

(1) This article by Sheryl Gay Stolberg in today's New York Times details what appears to be, at least for the moment, substantive conflict between the White House and its normally reliable Congressional servant Pat Roberts. According to Stolberg, Roberts opposes the DeWine proposal to simply exempt the whole warrantless NSA program from the requirements of FISA (what David Shaughnessy refers to as the "Nixon law," predicated, as it is, on the noxious premise that the law should always conform to the President's conduct so as to render legal whatever it is that he does).

One of the brilliant insights of the Founders was their recognition that human begins think and act tribally, almost on an inextinguishably instinctive level. For that reason, institutional pride and personal dignity will eventually come to outweigh ideology or partisan allegiance, such that judges will fight for judicial power, those in Congress will fight for Congressional power, and the President will fight for Executive power. This self-interested, tripartite struggle will lead to ever-shifting power centers but will always maintain some semblance of a balance of power in our government.

That balance-maintaining system has broken down over the last several years because the 9/11 attacks created a war climate in this country which the Bush Administration deftly and cynically exploited in order to install theories of unchecked Executive power which long pre-dated 9/11. And the fact that the Congress was controlled for most of that time by the President's own party -- and the media was scared into uncritical support for the Protector-President -- created a situation where there was little, if any, resistance to those power-grabbing schemes.

But people can be publicly emasculated and humiliated only for so long. Even the most obsequious mice among us, such as Pat Roberts, at some point want to at least appear to have some minimal amounts of personal autonomy. I don't think that Pat Roberts will ultimately act with any integrity. He won't. But the fact that he's bucking and kicking just a little bit demonstrates, again, that this scandal implicates so many profound and central questions for our political system that it is not something that can be or will be swept neatly under the rug. According to the Times:

The chairman of the Senate Intelligence Committee said Friday that he wanted the Bush administration's domestic eavesdropping program brought under the authority of a special intelligence court, a move President Bush has argued is not necessary. . . .

Mr. Roberts also said he did not believe that exempting the program from the purview of the court created by the Foreign Intelligence Surveillance Act "would be met with much support" on Capitol Hill. Yet that is exactly the approach the Bush administration is pursuing.

"I think it should come before the FISA court, but I don't know how it works," Mr. Roberts said. "You don't want to have a situation where you have capability that doesn't work well with the FISA court, in terms of speed and agility and hot pursuit. So we have to solve that problem."

This is not an easy-to-resolve problem. The White House is not going to accept a framework where all of their eavesdropping activities have to stay within the oversight of the FISA court. After all, they bypassed FISA in the first place precisely because -- for whatever reasons -- they wanted to eavesdrop on Americans with no oversight. And yet, it is difficult to imagine that even this Congress, having caught the Administration eavesdropping in flagrant and defiant violation of their law, will simply give them legal sanction to continue to do so. Arlen Specter and Roberts have now both said they oppose such a measure.

None of this by itself portends an apocalypse for the Administration. But it is another small fire that has broken out. And if even Pat Roberts is starting fires now on this issue, it's hard to imagine more compelling evidence that this scandal is still in the growth process, not in the process of being killed off quietly. And Bush opponents should do what they can to exacerbate these tensions and add fuel to these fires.

(2) I have to give credit where it's due. In response to my post yesterday pointing out the glaring error made by Captain Ed in claiming that FISA was intended to regulate only peacetime surveillance (even though the statute contains an express provision regulating eavesdropping during wartime), the Captain added an update to his post containing a commendably clear admission of error:

UPDATE: Glenn Greenwald rebuts me, and rather effectively at least on the text of FISA. No doubt Congress did intend to stake out territory in wartime surveillance.
However, it's telling that even the Democratic administrations of Carter and Bill Clinton didn't think it applied (Jamie Gorelick argued that international surveillance did not fall under FISA either), and courts have ruled in that direction. But Glenn's right in that Congress clearly intended this to apply to wartime as well.

The bit about how the Carter and Clinton administrations "didn't think it applied" is rather incoherent (I have no idea what that means), and the notion that "courts have ruled in that direction" is simply wrong, but he did acknowledge that the statute, contrary to his original claim, was clearly intended to regulate surveillance on Americans both during peacetime and during war. If more people were willing to simply acknowledge analytical and factual mistakes that way, political dialogue would be much more constructive.

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