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.

Sunday, July 09, 2006

The NSA scandal in a post-Hamdan world

(updated below - updated again)

I have a post up today at C&L this morning regarding the impact of Hamdan on the administration's warrantless eavesdropping program. Following up on Anonymous Liberal's excellent point that no Justice Department lawyer could now certify the legality of the program in light of Hamdan (certification which the program supposedly requires every 45 days), it is clear that the administration would be engaged in a whole new level of lawlessness if it continues to eavesdrop in violation of FISA even now that its only two legal justifications for doing so have been squarely rejected by the Supreme Court.

Beyond the legal implications, there ought to be clear political implications as well. As I document in the C&L post, the principal excuse invoked by Democratic Senators (such as Barack Obama) for refusing to support Sen. Feingold's Censure Resolution was that the President at least had a good faith basis (i.e., the advice of administration lawyers) for violating FISA. Therefore, they argued, even if the President has been breaking the law, there was at least a plausible (albeit wrong) legal "justification" for his doing so, thus rendering censure inappropriate.

But in the aftermath of Hamdan, that cannot possibly be maintained any longer. Post-Hamdan warrantless eavesdropping on the part of the administration requires a brazen defiance of the law -- even more brazen than before -- which not only has obvious implications in the realm of the criminal law, but also removes the Democrats' primary excuse for failing to stand with Sen. Feingold in support of the rule of law. Assuming that warrantless eavesdropping continues even in the wake of Hamdan, inaction on the part of the Senate now would be to endorse the President's power not only to violate Congressional law, but to act in defiance of the Supreme Court as well.

UPDATE: Mike Stark e-mailed me a recording of my debate with David Horowitz on Friday night's Alan Colmes Show. (SEE BELOW - UPDATE III). If there is someone to whom I can forward this file who knows how to upload it so that I can link to it, please e-mail me (if you read this after 7 p.m. on Sunday, please assume that I already found someone to whom I can send it. Thanks).

UPDATE II: Until now, I hadn't had time to really examine this potentially interesting report from the NYT that Republican House Intelligence Committee Chairman Pete Hoekstra wrote an ostensibly scathing letter to President Bush complaining "that the administration might have violated the law by failing to inform Congress of some secret intelligence programs and risked losing Republican support on national security matters."

When I first read the article, it struck me as very odd, because Hoekstra is essentially the House version of Pat Roberts -- someone who, with unseemly eagerness, wants to rubber-stamp everything the administration does and is an ardent opponent of meaningful Congressional oversight. There had to be something else going on besides a sudden and quite uncharacteristic desire on the part of Hoekstra to force the administration to comply with their legal obligations to brief Congress on intelligence matters. After all, Hoekstra has been one of the leading defenders of the administration's illegal programs, including warrantless eavesdropping.

This analysis from Marcy Wheeler explains what is really going on here and is highly worth reading. As suspected, this outburst of feigned independence from Hoekstra has nothing to do with a sudden awakening on his part that Congress is supposed to play a role in our government and that the President is required to abide by the law. Like most of his colleagues, he could not care any less about such matters. Hokestra's letter to the President is here (.pdf).

UPDATE III: My debate with David Horowitz on Friday's Alan Colmes Show can be heard here. The tape is imperfect because it begins about 30 seconds into the segment, cuts off the last two minutes or so, and contains commercials (through which you can easily fast foward), but the bulk of it is there.

Horowitz lost control of his emotions very early on -- literally. As a result, he was unable to speak coherently or even stop speaking at all -- both when it was his turn and mine, and his contributions were typically composed of screaming "LIAR!" and "LEFTIST!" over and over with a shriek so hysterical it has to be heard to be believed. As a result, part of the debate, especially as it progresses, has a crass Jerry Springer feel to it, but I am satisfied that between myself and Colmes, the points that needed to be made were made. Horowitz -- like most of the tough guy neoconservatives do when confronted -- backed down, at one point saying that he was wrong to promote publication of the NYT photographer's home address, but then insisting that others at the NYT are waging "war" and are thus "fair game."

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