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.

Wednesday, July 12, 2006

Right-wing tempter tantrums - Hamdan and illegal eavesdropping

(updated below)

Two matters to note:

(1) My post yesterday concerning the hypocrisy and inconsistency of those right-wing bloggers who self-righteously milked the Epic "Deb Frisch" Controversy for all it was worth this weekend doesn't seem to have been very well-received by the Right Blogosphere. In less than 24 hours, they swarmed together to spit out the most petulant wave of childish insults and substance-free foot-stomping that I have seen in quite some time -- a frenzied wave of ad hominems and bitter personal insults which were then promoted, linked to and celebrated by the Chief Defender and Arbiter of Civil Discourse, Glenn "Instapundit" Reynolds.

Right-wing bloggers who spent the weekend lamenting the state of discourse on the Internet responded to my post as follows: Patterico's post was entitled "Glenn Greenwald: Douchebag" and he began by arguing: "Glenn Greenwald is a douchebag"; he ended his post by saying: "You douchebag." When I responded to his post in his comment section, he added a postscript to his post threatening to ban me from commenting on his blog.

Dan Riehl's post, entitled "Enough Of Greenwald, Already," quickly refused to condemn Misha's calls for the hanging of journalists and Supreme Court Justices, but spent the bulk of the post hurling ad hominems at me, calling me "the most annoying little twit of the Left" and "an average, unemployed lawyer." He also recommended that I "opt for actual masturbation," and then investigated my bar status and reported that I was guilty of the grave sin of filing my attorney registration renewal form late.

Little Green Footballs observed that I had written "another idiotic post" and that I was "the left’s most dishonest blogger." Sister Toldjah accused me of having a "peculiar fascination with slamming all things conservative." Confederate Yankee's post was entitled "Lord of the Dunce" and began: "Poor Glenn Greenwald" and ended with: "I'd tell him to take a long walk off a short pier, but I don't know that the poor man would survive the rhetorical drop."

And then, appropriately enough, they all linked to each other, with short little cliched bursts of praise ("Slam!"). So that's your star-studded line-up of right-wing moralizing crusaders who spent the weekend solemnly lamenting the lack of civility in political discourse in the blogosphere.

With those brilliant and elevated responses assembled before him, Instapundit -- who endlessly parades himself around as a righteous advocate of civil discourse, and who was one of those who spent the weekend lamenting the terrible language directed at Jeff Goldstein -- also weighed in on my post. He did so by approvingly linking to the very high-level responses from Dan Riehl, Sister Toldjah, and Patterico, and then shared with us: "I'm no fan of Greenwald." (Incidentally, Instapundit, who claims with great self-satisfaction to be an adherent to the privacy-protecting "Online Integrity" concept, links to Riehl, who currently has posted on his blog satellite photographs of Punch Salzburger's home along with his home address).

So that's the level of discourse that comes from right-wing bloggers, every one of whom cited here -- each and every one -- doled out solemn lectures this weekend about how terrible it is for people to write mean personal insults on the Internet, only to respond to my post today with the above-excerpted tantrums. And all of that leaves to the side the fact that they were unable to comprehend the actual arguments that were made in the post -- most of them responded to the opposite of the argument that was actually made -- an embarrassing fact which QandO's Jon Henke had to explain to them here and here. But ultimately, their whiny, ad hominem tantrums seem more notable than the lack of comprehension.

(2) I will write more about this topic tomorrow, but Anonymous Liberal summarizes some important events from yesterday with regard to the implications of Hamdan for the President's radical executive power theories generally, as well as its impact on the warrantless NSA program specifically. I have been arguing since Hamdan was issued that that decision squarely forecloses both of the legal defenses which the administration has raised to justify its violations of FISA, and as A.L. notes, even National Review's Andrew McCarthy -- one of the administration's most stalwart legal defenders -- now agrees. He wrote in NRO yesterday:

Hamdan is a disaster because it sounds the death knell forthe National Security Agency's Terrorist SurveillanceProgram (TSP) . . . . Logically, albeit very unfortunately,the court has simultaneously brushed aside both administration justifications for the TSP.

That seems to be an emerging consensus, even among Bush supporters -- that Hamdan removes any potential justification for the Bush administration to continue to eavesdrop outside of FISA or disregard other Congressional laws in the area of national security. But, as A.L. documents, the administration -- at least for now -- seems intent on defending its illegal program even in the face of Hamdan, i.e., even though it has no good faith legal justification left. I will write more on this tomorrow.

UPDATE: In a post on NRO's Bench Memos (h/t Jao), Andrew McCarthy says that the majority in Hamdan based its reasoning on the anti-warrantless-eavesdropping legal letter (.pdf) signed by 14 former government lawyers and professors (including Marty Lederman) which argued that the NSA program is illegal, and McCarthy is therefore convinced that the majority decision in Hamdan precludes the administration's legal defenses in the NSA matter. He thus concludes:

Finally, not to go on much longer in this already lengthy response, I have spent a great deal of time and energy studying and trying to explain what I understand to be the legal basis for the NSA program. . . . My own rule of thumb is to try to fight hard but fight fair, and admit when I’ve lost. I’ve lost.

Too bad the Bush administration -- at least as of now -- can't be as forthright about these matters as McCarthy is, and simply admit that the Supreme Court's decision in Hamdan has rendered their warrantless eavesdropping program illegal. The administration's continuation of the program now means not only that they are breaking the law, but that they are doing so knowingly and with no good faith defenses.

(3) Chris Bowers' post, highly worth reading, explores the way in which "the media establishment ignores the increasingly frequent calls to violence within the right-wing blogosphere," even as it is obsessed with petty conflicts and gossip in the left-wing blogosphere.

Given that journalists have become the favorite target for this incendiary and violence-inciting rhetoric from the Right, it is high time that we begin reading articles exploring the extremist and dangerous tactics coming from increasingly mainstream segments of the right-wing blogosphere. An examination of those trends would be a lot more valuable (and a lot more interesting) than yet another tiresome and shallow article about whether liberal bloggers curse too much or whether Kos dictates what liberal bloggers will write.

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