Question of the Day

Jacob Leibenluft has a useful “Explainer” today on the Presidential pardon power, but then comes up with this clunker:

If someone hasn’t yet been charged with a crime, how does the president know what to pardon them for? As in Nixon’s case, President Bush could issue a pardon that applies generally to any crimes that may have been committed within a certain range of dates. More likely, a pardon could apply only to actions surrounding a single policy or place—say, the detention or interrogation of suspected al-Qaida members.

“More likely” says who?

Put another way: is there any reason to believe that this President will refrain from protecting his political friends because it would constitute an abuse of power or is “just not done”?

Any reason at all?

The Upcoming Pardon Wave: Bring on the Disbarments!

To the surprise of exactly no one, in light of the torture scandal, the warrantless wiretapping scandal, the US Attorneys scandal, the Valerie Plame scandal, and the (fill in blank) scandal, conservative lawyers are pushing the Bush Administration for dozens of pardons for administration officials. Some of us, of course, predicted this months and even years ago (well, okay–a year and a half ago).

I believe that Bush will grant the pardons, including one to Cheney. Instead, at this stage the real question is whether the relevant Bar Associations going to move ahead by disbarring the lawyers involved in all of this. Candidate Number One is Addington. Number Two is Gonzales. Number Three is Yoo (although in Yoo’s case, it’s not actually clear whether he is a member of a Bar: he is not listed as a member in either California or DC. His home state is Pennsylvania, which does not appear to allow on-line access for non-members).

It’s far from clear that this would be real sanction: Richard Nixon was disbarred, as was Bill Clinton, and it didn’t hurt their careers. Gordon Liddy was disbarred, and he is now a conservative saint. But somehow I don’t see most of the Bushies as talk show hosts. For Addington, or Gonzales, or Judge Jay Bybee of the Ninth Circuit, or William Haynes, it could be a real hit. These men make their living as lawyers. On the other hand, I’m sure that some conservative think tank will give them a posh sinecure for their failure.

And just to keep things clear: even a Presidential pardon will not keep any of these guys free from international criminal indictment. Larry Wilkerson, Colin Powell’s former chief of staff, had it right:

Haynes, Feith, Yoo, Bybee, Gonzales and – at the apex – Addington, should never travel outside the US, except perhaps to Saudi Arabia and Israel. They broke the law; they violated their professional ethical code. In future, some government may build the case necessary to prosecute them in a foreign court, or in an international court.

Obama and FISA’s Mother

How Obama can dig himself out of his FISA hole.

Pace Mark, Obama is in a deep hole over FISA. It’s the third issue crisis in his candidacy, after health care mandates and the Reverend Wright. He overcame the first two by sticking to his guns; he has got into this one by a real, not a manufactured flip-flop. Moral: don’t do it again. But the FISA one is still running. Obama’s online answer to his supporters is thin and won’ t I think settle the matter. What can he do? Hoping the fuss will go away won’t work. Voting either for or against FISA’s Mother would be equally damaging.

The only exit is the fuite en avant: proposing a shiny new and principled policy on privacy and surveillance, with new legislation after full inquiries into Bush’s abuses. Self-interested bid: please pay at least token respect to the idea that even foreigners have some privacy rights (Universal Declaration on Human Rights, article 12, etc. etc.) even if your actual plan is to violate them on the least provocation.

One line worth exploring is why exactly the Bush Administration refused to live within FISA, an executive-friendly piece of legislation, and amended several times to make it even more so.

Continue reading “Obama and FISA’s Mother”

Minority report

Foreigners have privacy rights too.

So the Democratic Congress has caved in to Republican fear-mongering on illegal surveillance (ht Glenn Greenwald). Barack Obama has distanced himself from the legislation in a carefully calibrated way that falls well short of outright condemnation of the whole package, though he is at least firmly opposed to the worst element, blanket retroactive immunity for the telcos. (Update: Jack Balkin explains why.)

It’s striking that even the most gung-ho opponents of the legislation like Greenwald agree on one thing: the offence is lawless surveillance of Americans; there’s no problem at all in continuing the NSA’s limitless right to spy on mere foreigners.

Allow this foreigner to dissent. Here’s my minority report of one. Thesis:

The invasion of the privacy of any human being by the the agencies of any government should be subject to law, due process, and proportionality. The public interest in gathering information about crimes and threats to national security has always to be balanced against the private interest in privacy, which is both a a fundamental human right and a bulwark of the public interest in sustaining democratic institutions.

Continue reading “Minority report”

For Whom the Bell Blogs

Two stories led the New York Times this morning—one on NSA spying, one on the cutbacks in social programs. Which one the blogosphere cares more about is obvious—and sad.

Two stories lead the New York Times this morning. One gives notice that the Justice Department won’t be turning over internal memos revealing its lawyers’ on-again off-again opposition to the warrantless wiretaps and the theory of executive authority that went with them. The other tells us that the House just voted—in accord with the Senate and a promised signature by Bush—to cut “spending on health and education programs.” Said cuts include some items that might not be so bad. They also include “a freeze in payments to home health care providers” and “increasing co-payments and reducing payments for prescription drugs” for Medicaid recipients.

The average consumer (and producer) of the blogosphere can safely be predicted to care much more about the first story than the second. One story potentially affects people with time on their hands and a penchant for political dissent. The other affects the kind of person who will finally have to give up his own apartment and become an inmate in a nursing home, or who will now have to choose between treating her diabetes and buying enough peanut butter for her toddler’s lunch.

My opinion that Democrats should try to run on health care more than spying is mostly political. But it’s not just political. From those to whom much political information is given, much is expected.

Signing statements = petard?

Bush famously uses signing statements to arrogate executive power. But in doing so, says Anonymous Liberal, he may in one crucial instance have undercut his own story.

As those following the executive-power argument have come to realize, President Bush is fond of using presidential signing statements to arrogate executive authority and declare that laws that limit his power will be interpreted by him as unenforceable. (This is rather significant, since he’s supposed to be doing the enforcing.) For those who want to know, for instance, why I think that McCain won the politics of the torture issue but lost the policy, read Dahlia Lithwick’s explanation in Slate.

Anonymous Liberal claims that Bush tripped himself up with one of these, essentially admitting that he didn’t have the power to do the warrantless wiretaps until he signed the Patriot Act—when in fact he had been doing so all along. I’m not an attorney and I don’t have the time (frankly) to check the chronology, but Anonymous’ arguments look initially convincing—well worth a closer look by those in a better position to judge carefully.

The politics of this? Well, it’s way too complicated for a sound bite, but might be the kind of thing that a senator could be brought to ask during Specter’s hearings. And the opinions of ticked-off senators sometimes trickle down into public opinion, when reinforced by other things and in the very long term.

UPDATE: Anonymous points out that the above could be misinterpreted. I didn’t mean to claim that Bush really DID have the power to do warrantless wiretaps after signing the Patriot Act. The act granted no such power (though it did grant the power to do roving wiretaps and other things). I was saying on the contrary that Bush’s absurd claim that the Patriot Act let him do warrantless wiretaps for the first time undercuts his later—even more absurd—claim that he had these powers as soon as the Authorization for the Use of Military Force (in a war against Afghanistan, as most of us naïvely thought at the time) was passed. I was comparing two howlers, not a howler with something more reasonable. At least, I was reporting Anonymous’ doing so and saying that he seems right.

Latest wiretap poll: The Frame’s Afoot.

Latest wiretap poll: Framing remains the key, and most trust government to know who’s a likely terrorist.

The latest New York Times/CBS poll (story here; full results, in .pdf, here) shows the frames on domestic spying frozen in place. Everything still hangs on whether Bush can persuade people that it’s all about the terrorists.

The relevant questions in the .pdf are numbers 56 or so following (starting at p. 30). Highlights:

—Only 28 percent of those asked are willing to “allow government agencies to monitor the telephone calls and e-mail of ordinary Americans on a regular basis”; 70 percent are unwilling. But:

68 percent are willing to allow such agencies to monitor calls and emails “of Americans that the government is suspicious of,” only 29 percent unwilling.

—The last two results make sense only given the belief that government agents can reliably tell “whose phone calls and emails should be monitored and whose should not.” This is to my mind a bizarre belief, but it’s a popular one: 58 percent profess “a great deal” or “a fair amount” of confidence that government agencies can do that, as opposed to 28 percent “not much” and 13 percent “none at all.”

—when asked about Bush’s warrantless wiretaps, a narrow majority opposed turns to a narrow majority in favor when twelve words are added to the description of the policy: “saying this was necessary in order to reduce the threat of terrorism.”

—when asked whether the wiretapping was being done “as part of a plan to expand the power of the Presidency, or is it being done ONLY to fight terrorism” (all caps in original), ONLY terrorism wins by more than 2 to 1. A Bush-is-engaging-in-dirty-tricks accusation may in fact be true, but seems to have little traction right now—and anyone making it should beware of losing credibility.

This continues to be the battlefield: is the wiretapping against “ordinary Americans” or “suspected terrorists”? Do we mistrust those watching terrorists (since we clearly believe that they are watching terrorists) more than we fear terrorists? And will we be constantly thinking about terrorism as this issue gets argued—or about presidential power?

And, finally, for those who think that the American people have such an instinctive attachment to civil liberties that Bush can’t help but lose this issue: the poll asked,

If a person is suspected of a serious crime, do you think the police should be allowed

to hold him in jail until they can get enough evidence to officially charge him?

It’s true, a plurality (48 percent) said no. But 43 percent said yes.

The professed anti-government sentiment of Americans provides lots of hope to liberals, but mostly false hope. Opposition to government means hating the taxman, not the policeman.

Memo to POTUS:
    Some Thoughts Concerning the College Curriculum

UCLA isn’t the only place where disrespect for the Commander in Chief and the War on Terror is taught. The problem is much bigger.



RE.: Curriculum

Dear Sir,

It has come to my attention that a work attacking the terrorist surveillance program is widely taught in American colleges and universities—sometimes in mandatory introductory classes that conservatives may not opt out of. It contains specific remarks clearly intended to cast doubt on my demonstration that your recent actions compare to those of Presidents Washington, Wilson, and Franklin Roosevelt.

We could consider censoring this kind of thing by executive order, either open or secret, but it would be wrong. Maybe we could have Karl call Dave Horowitz and stir up some state legislatures against professors who teach this stuff? We are at war, and when some Latin-quoting Oxford professor is taught in place of real Americans who worked their way up from nothing through sheer hard work and flattery, some action must surely be taken.

Anyway, here’s the piece. I’ve highlighted the most biased and offensive parts.


And therefore they have a very wrong notion of government, who say, that the people have encroached upon the prerogative, when they have got any part of it to be defined by positive laws: for in so doing they have not pulled from the prince any thing that of right belonged to him, but only declared, that that power which they indefinitely left in his or his ancestors hands, to be exercised for their good, was not a thing which they intended him when he used it otherwise: for the end of government being the good of the community, whatsoever alterations are made in it, tending to that end, cannot be an encroachment upon any body, since no body in government can have a right tending to any other end: and those only are encroachments which prejudice or hinder the public good. Those who say otherwise, speak as if the prince had a distinct and separate interest from the good of the community, and was not made for it; the root and source from which spring almost all those evils and disorders which happen in kingly governments. And indeed, if that be so, the people under his government are not a society of rational creatures, entered into a community for their mutual good; they are not such as have set rulers over themselves, to guard, and promote that good; but are to be looked on as an herd of inferior creatures under the dominion of a master, who keeps them and works them for his own pleasure or profit. If men were so void of reason, and brutish, as to enter into society upon such terms, prerogative might indeed be, what some men would have it, an arbitrary power to do things hurtful to the people.

But since a rational creature cannot be supposed, when free, to put himself into subjection to another, for his own harm; (though, where he finds a good and wise ruler, he may not perhaps think it either necessary or useful to set precise bounds to his power in all things) prerogative can be nothing but the people’s permitting their rulers to do several things, of their own free choice, where the law was silent, and sometimes too against the direct letter of the law, for the public good; and their acquiescing in it when so done: for as a good prince, who is mindful of the trust put into his hands, and careful of the good of his people, cannot have too much prerogative, that is, power to do good; so a weak and ill prince, who would claim that power which his predecessors exercised without the direction of the law, as a prerogative belonging to him by right of his office, which he may exercise at his pleasure, to make or promote an interest distinct from that of the public, gives the people an occasion to claim their right, and limit that power, which, whilst it was exercised for their good, they were content should be tacitly allowed.*

P.S.: Did I tell you today how manly and commanding you are when you assert that no act of Congress can limit your powers? I try to emulate you in all things, and I always remind myself that you are my client and that my job is to write briefs supporting whatever position you’ve decided to take. Sam was very good on this.

*John Locke, Second Treatise of Government, Chapter 14, sections 163-4.

The T-word, the L-word —
    and our old friend Pat Roberts

We now know Bush’s line on the wiretaps: flog “terrorism,” vaguely assert legality—and trust the senator who can always be counted on to stonewall.

I called it: the Bush strategy on the NSA wiretaps is to flog the T-word and vaguely assert legality. (Article here; transcript here.)

We now have a “terrorist surveillance program,” and we can all breathe easier knowing that our President “had all kinds of lawyers review the process.” (He must have been worried: had they told him it was illegal, he would of course have had to stop.)

Special “laughter and applause,” according to the White House transcript, greeted the question, “You know, it’s amazing, when people say to me, well, he was just breaking the law—if I wanted to break the law, why was I briefing Congress?” An excellent question. If I wanted to break the law, I might not, in fact, “brief Congress.” But I might leave most of Congress in the dark and confide instead in Senator Pat Roberts, Bush’s companion at his speech yesterday and a man demonstrably willing to work with Dick Cheney to stonewall Congressional investigations into intelligence matters. It was Roberts’ stonewalling that provoked Harry Reid into throwing Congress into a closed session last fall to force some answers.

They’ve thrown their best pitch now. Time for us to swing. And time to see whether John McCain feels like playing catcher—or throws down his mask in disgust.