Josh Marshall wonders why the NSA warrantless wiretap program, which “the administration spent like — what? — a year saying was vital to national security . . . can now apparently be brought under constitutional supervision without any problem whatsoever.”
If I were a cynic, I would answer in the following way:
Once the program was brought to light, Karl Rove thought that he had a great political opportunity. Refuse to bring it under the Constitution, and when the Democrats complain, slam them for wanting to hamstring the “terrorist surveillance program.” Well, that didn’t work too well, but it sufficiently cowed the Dems to cave on the Guantanamo prisoners issue.
In any event, Bush will no longer be on the ballot, and no Republican will want to run on the Bush policies. So the program’s extraconstitutional nature no longer has a political purpose. And that’s the key: the Constitution, for this administration, can and should be used for political ends.
Remember DiIulio’s Law:
There is no precedent in any modern White House for what is going on in this one: a complete lack of a policy apparatus. What you’ve got is everything—and I mean everything—being run by the political arm. It’s the reign of the Mayberry Machiavellis.
At least that’s what I’d say if I were a cynic.
Author: Jonathan Zasloff
Jonathan Zasloff teaches Torts, Land Use, Environmental Law, Comparative Urban Planning Law, Legal History, and Public Policy Clinic - Land Use, the Environment and Local Government. He grew up and still lives in the San Fernando Valley, about which he remains immensely proud (to the mystification of his friends and colleagues). After graduating from Yale Law School, and while clerking for a federal appeals court judge in Boston, he decided to return to Los Angeles shortly after the January 1994 Northridge earthquake, reasoning that he would gladly risk tremors in order to avoid the average New England wind chill temperature of negative 55 degrees.
Professor Zasloff has a keen interest in world politics; he holds a PhD in the history of American foreign policy from Harvard and an M.Phil. in International Relations from Cambridge University. Much of his recent work concerns the influence of lawyers and legalism in US external relations, and has published articles on these subjects in the New York University Law Review and the Yale Law Journal. More generally, his recent interests focus on the response of public institutions to social problems, and the role of ideology in framing policy responses.
Professor Zasloff has long been active in state and local politics and policy. He recently co-authored an article discussing the relationship of Proposition 13 (California's landmark tax limitation initiative) and school finance reform, and served for several years as a senior policy advisor to the Speaker of California Assembly. His practice background reflects these interests: for two years, he represented welfare recipients attempting to obtain child care benefits and microbusinesses in low income areas. He then practiced for two more years at one of Los Angeles' leading public interest environmental and land use firms, challenging poorly planned development and working to expand the network of the city's urban park system. He currently serves as a member of the boards of the Santa Monica Mountains Conservancy (a state agency charged with purchasing and protecting open space), the Los Angeles Center for Law and Justice (the leading legal service firm for low-income clients in east Los Angeles), and Friends of Israel's Environment. Professor Zasloff's other major activity consists in explaining the Triangle Offense to his very patient wife, Kathy.
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