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.

Friday, February 10, 2006

Why this all matters

Here are a few items of interest with a common theme:

(1) Jane Hamsher is crusading to ensure that James Comey, the Deputy Attorney General under both Ashcroft and Gonzales, is called before the Senate Judiciary Committee to testify regarding his views of the legality of the NSA program. I sent her via e-mail my thoughts on this issue, including the excerpt from Gonzales’ exchange with Sen. Schumer which seemed to suggest quite strongly that: (a) Specter intends to call further witnesses, including, at a minimum, Ashcroft, Comey and Jack Goldsmith and (b) those witnesses will not be permitted to testify as to the internal deliberations which took place within the DoJ regarding these programs (on the grounds of executive privilege and perhaps attorney-client privilege), but will be free to state what their views are concerning the (il)legality of the program.

As the exchange with Schumer demonstrates, Gonzales was very meticulous in pointing out that Comey (and Goldsmith) had no objections to the current incarnation of the program, which means they did have objections either to: (a) some prior incarnation or otherwise proposed version of the program and/or (b) some other eavesdropping program. I don’t know what Comey will say, obviously, but he has a well-earned reputation for honesty and integrity, and the more witnesses who testify, the better — both because it keeps the scandal energized and alive and because the more facts that come out, the better.

(2) There are two extremely common legal misconceptions which are almost always spouted by Bush defenders when defending the NSA program: (a) if a President has the "inherent authority" under Article II to engage in warrantless eavesdropping, then this means that Congress is without power to limit or restrict that power (the simplistic Powerline defense); and (b) the AUMF constitutes a declaration of war.

I have spent a fair amount of time setting forth the reasons why both of these myths are false, but hopefully, the fact that Alberto Gonzales just testified that they are both untrue will prevent Bush followers from peddling them in the future.

Here is what he said about a President’s inherent power:

GRAHAM: If you don't buy the force resolution argument, if we somehow magically took that off the table, that's all your left with is the inherent authority. And Congress could tomorrow change that resolution, and that's dangerous for the country if we get in a political fight over that.

All I'm saying is that the inherent authority argument, in its application, to me, seems to have no boundaries when it comes to executive decisions in a time of war. It deals the Congress out, it deals the courts out.

And, Mr. Attorney General, there is a better way. And on our next round of questioning we will talk about that better way.

GONZALES: Can I simply make one quick response?

SPECTER: You may respond, Attorney General.

GONZALES: Well, the fact that the president, again, may have inherent authority doesn't mean that Congress has no authority in a particular area. And when we look at the words of the Constitution, and there are clear grants of authority to the Congress in a time of war.

And so if we're talking about competing constitutional interests, that's when you get into, sort of, the third part of the Jackson analysis.

Whenever Bush defenders cite that line of pre-FISA cases which held that the President has inherent authority to engage in warrantless eavesdropping for purposes of foreign intelligence, they frequently imply, and often outright state, that this means that the President can engage in such activities even in the face of a Congressional statute making it a crime to do so. But as Gonzales made clear, to say that the President has the inherent authority to do X does not mean that Congress is without power to limit or regulate X. That is the whole point of Youngstown – that the President cannot exercise even authority he possesses in the face of a Congressional statute where Congress also has authority in that area.

And this is what Gonzales said about whether AUMF is a declaration of war:

GONZALES: There was not a war declaration, either in connection with Al Qaida or in Iraq. It was an authorization to use military force.

I only want to clarify that, because there are implications. Obviously, when you talk about a war declaration, you're possibly talking about affecting treaties, diplomatic relations. And so there is a distinction in law and in practice. And we're not talking about a war declaration. This is an authorization only to use military force.

The DoJ -- somewhere along the line and for strategic reasons that I confess I haven’t been able to figure out fully yet -- decided it was important for them to take the position that the AUMF is not a declaration of war. Thus, according to the DoJ, there has been no declaration of war from Congress as to any of these conflicts. (Someone might want to tell the President, since he, in every speech, continues to say, as he did yesterday: "We remain a nation at war").

(3) The right-leaning Jon Henke at QandO provides further evidence that one need not ascribe to a liberal political philosophy in order to find the Administration’s excesses and deceit repugnant to the values on which this country was founded. Jon points to a new article from National Journal reporting that only a small minority of detainees at Guantanamo had anything to do with Al Qaeda, and that the Administration’s assurances regarding who it was who was detained there were fundamentally false. As Jon concludes:

This is why we have due process. This is why we have transparency. This is why a free people who want to remain that way ought to insist we apply due process and transparency even to suspected terrorists. Instead, we've largely stood by while the Bush administration has run roughshod over innocent people; while the Bush administration detained innocent civilians and lawful combatants, and abused them into false confessions. And then that administration had the temerity to say that legislation removing legal recourse by those people "reaffirm[s] the values we share as a Nation and our commitment to the rule of law"....

Remember: the people who told us that the detainees at Guantanamo Bay were all Taliban, captured on the battlefield or otherwise terrorists are the same people who swear, really, that the domestic surveillance program is "solely for intercepting communications of suspected al Qaeda members or related terrorist groups."

A commenter here a few days ago remarked that he never really cared about political issues until recently, but has almost been forced into caring by the radical and extremist measures taken by the Administration, which truly threaten our most basic political values. I feel the same way. I am far more engaged politically now than I was, say, five years ago, because I really perceive that not just political differences, but the kind of country we fundamentally want to be, is what is at stake in our current controversies.

I fully share these sentiments expressed the other day by Hilzoy at Obsidian Wings:

I have spent my life loving this country for its values, among them the right not to be tossed in jail at the whim of some ruler, but to be guaranteed the right to live free from searches, wiretapping, surveillance, and arrest unless some official could convince a judge that there was probable cause to believe that I had committed a crime. I could scarcely believe it when Padilla was locked up: I was as shocked as I would have been had Bush asserted the right to ban Lutheranism, or to close down the New York Times. It was such a complete betrayal of our country's core values that it took my breath away.

I feel the same way about the NSA story.

I couldn’t agree more. For me, the real trigger - the final straw - was the due process-less but indefinite detention of U.S. citizen Jose Padilla in a military prison with no access to lawyers or even charges of any kind, while the Administration argued that he no right to even have a court review his detention, which occurred on U.S. soil. To me, nothing is more un-American than that – nothing.

And the rationale on which those actions were predicated are exactly the same as the rationale on which warrantless eavesdropping and a whole host of other excesses are predicated. If someone isn’t opposed to these things and isn’t willing to fight against them, it’s hard for me to see how someone can claim to believe in the values and traditions of this country.

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