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, March 24, 2006

Speaking out of both sides of the Bush-loving mouth

By Anonymous Liberal

Glenn has done an excellent job over the last two days explaining why it makes no sense for Democratic senators to withhold judgment on Sen. Feingold's censure resolution pending the completion of an investigation that 1) is not going to happen, and 2) could not possibly yield any additional facts that are relevant to determining the legality of the President's warrantless surveillance program(s).

The problem here is that the administration's defenders have conflated policy analysis with legal analysis, and most Democrats are either unable or unwilling to point out the difference. Indeed, the Jeff Goldsteins of the world readily declare the NSA program to be good policy while, at the same time, insisting that "we DO NOT have enough information to make an informed judgment about the program's legality." In other words, we must remain agnostic about the legality of the program pending further investigation, but we do not need further investigation to know that the program is good and effective and does not unreasonably infringe on our civil liberties.

It is impossible to understate just how incoherent and ass backwards this position is. Policy analysis is much more fact-intensive than legal analysis. To know whether or not something is good policy you generally need to know ALL the facts. That's just the nature of policy analysis. One small detail can turn an otherwise good policy into a spectacularly bad one.

The same is not at all true of legal analysis, which relies almost entirely on public documents (statutes, published opinions, the Constitution, etc.). Determining whether an activity runs afoul of the law only requires knowing a few legally significant facts. The remaining details may augment or diminish the extent of the wrongdoing, but they do not bear on the legality of the conduct at issue. As both Glenn and I have explained ad nauseum, the facts necessary to evaluate the legality of the NSA program are not even in dispute. The administration has admitted that the type of surveillance it is conducting requires a warrant under FISA, and it has admitted that warrants were not obtained. The rest is purely a matter of law. As Glenn explained the other day:

[A]ll of the facts relevant to the question of whether the President broke the law (the only issue raised by the Feingold Resolution) are already known, and for that reason it is illogical to claim that an investigation is needed before that question can be answered. Put simply, we don't know the scope and extent of the President's illegal eavesdropping, but we do know that the eavesdropping he ordered was illegal.

But while the censure debate is ripe for discussion, the greater policy debate is most certainly not. We don't know how the program works, what technology or processes it employs, how effective it is, what safeguards or oversight (if any) are in place, or whether there has been any abuse. All of these facts are highly relevant to any policy analysis of the program and can only be determined through further investigation.

Nevertheless, the same Republicans who claim that Russ Feingold's legal pronouncements are uninformed and premature are unwilling to investigate this program and appear determined to press ahead with legislation that would render it legal (at least going forward).

Before long, Democrats (and Republicans) in the House and Senate will be forced to vote on this legislation, which, if passed, will gut the Foreign Intelligence Surveillance Act, a law that has governed the surveillance of Americans for almost 28 years and has been fine-tuned by Congress on numerous occasions (most recently two weeks ago). Between now and the time that bill comes up for a vote, there will be no Congressional investigation, no further fact-finding. Indeed, for most members of Congress, there will not even be a classified briefing. Our representatives and senators will be asked to legislate in the dark, to make a policy judgment about a program of which they know virtually nothing--except, of course, that it's currently illegal.

When that day comes--and it will--what do Democratic Senators plan to do? They won't know any more about the program than they know now, and they will be expected to make a policy judgment, not a legal one. They'll be expected to vote "yay" or "nay" on a bill called the Terrorist Surveillance Act of 2006. Do they really think that if they just lay low and remain agnostic, this issue will go away? Do they think they'll be able to punt on this issue indefinitely?

This battle cannot be avoided (nor should it be). Democrats can either choose to set the terms of the debate by going on the offensive and supporting Feingold's resolution, or they can once again allow the GOP to define the debate. Instead of a debate over censure we can have a debate over the Terrorist Surveillance Act of 2006.

As the minority party in Congress, the only weapon the Democrats have is symbolism. Feingold's censure resolution offers a platform for Democrats to frame the upcoming debate, to explain to America that President Bush broke the law and that his own party has refused to investigate it. It is an opportunity to put the administration on the defensive. If the GOP then moves ahead with an attempt to legalize the President's conduct, the Democrats will have already made it clear to the public why they cannot support such a bill. Their opposition will seem principled and consistent. The Terrorist Surveillance Act will look like what it is, a piece of cover-your-ass legislation introduced only after the President had been caught red-handed breaking the law.

If the Democrats wait until the DeWine bill comes to the floor to speak up, they will once again come across as indecisive and weak. They will allow the administration to frame this issue as one of terrorism policy, as opposed to presidential law-breaking.

This issue is not going to go away. The context in which it plays out is entirely up to Democrats in the Senate.

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