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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.

Tuesday, March 28, 2006

This Week in the NSA Scandal

As you can likely already tell, my blogging this week is going to be light. It appears I'm now in the "things-are-very-serious" stage of producing this book, where editors yell and become all nervous if you're not constantly cranking out new material like a good, focused workhorse. Fortunately, I have had superb guest posts courtesy of A.L. and Hypatia and hope to have some more soon. Until then, a few quick notes:

(1) The Senate Judiciary Committee is holding hearings again today on the NSA scandal. One can watch them live on C-SPAN here. The morning panel is composed of four federal judges. From the bits and pieces I've subjected myself to thus far, it appears that their purpose is to heap praise on Sen. Specter's "new legislation" and drone on about how the Constitution clearly allows Congress to grant the President broad eavesdropping powers for foreign intelligence purposes without having to bother with case-specific probable cause showings.

The afternoon panel ought to be much more instructive and interesting. It includes Morton Halperin, currently with the Center for American Progress and formerly with the ACLU, whose telephones were tapped under the Nixon Administration, something which was discovered only by the Church Committee.

The other panelist is David Kris, formerly with the Bush Justice Department (and now with Time Warner). Kris testified in front of the Judiciary Committee in 2002 regarding FISA and made what appear to be false statements about the Administration's eavesdropping activities, likely because he was not advised of the illegal eavesdropping the President had ordered. He also, as Marty Lederman recently discussed, authored very strong memoranda which were highly critical of the Administration's "legal justifications" for eavesdropping in violation of FISA.

(2) It is still early in the year, but I am quite confident that these statements from Sen. Carl Levin, which he made this weekend on FOX with Chris Wallace, will end up at the very top of the list of Most Infuriating Statements of the Year once we are at the end of 2006:

WALLACE: Well, let me ask you, just to press this a little bit further, one of your colleagues on this subcommittee, a Democratic colleague, Senator Diane Feinstein, came out afterwards and said that she thought it was a very impressive program and didn't have a contrary word to say about it.

LEVIN: Well, she has, obviously — she feels comfortable saying what she wants to say about her briefing. I don't want to say anything about the way this program operates or reach any conclusion until my briefings are concluded.

But then again, I hope to be able to find a way that I can either look people in the eye and say this program is one where there is probable cause of the precise type that the president assured the nation.

That to me is critical. Then if there is probable cause to believe that these people who are engaged in these conversations are Al Qaeda-connected agents or members, then the question is is it legal, or do you have to modify the law in order to make it legal.

WALLACE: But there's a political reality in this, too, as I don't have to tell you. Do Democrats want to be in the position of investigating the president for possible censure, a president in the middle of wartime, over a program that, at least according to some people who have been briefed on it, including a Democrat, does a good job in protecting the American people?

LEVIN: No, I think it's premature to reach any conclusion about censure, and I would first put the inquiries before you reach any conclusion.

WALLACE: Do you think it was helpful to even raise the idea?

LEVIN: No, I think to say that you should censure the president before you have had the inquiries is premature, so I don't think it's helpful to reach that conclusion at this point.

The whole interview is like that. I just picked the worst of it. Carl Levin obviously believes that it is perfectly acceptable for the President to break the law just as long as it turns out that his illegal conduct is driven by good intentions. To Sen. Levin, this is what the NSA scandal is about:


the question is is it legal, or do you have to modify the law in order to make it legal.

If it turns out that they were not abusing the eavesdropping power, then it is perfectly fine with Sen. Levin if the President broke the law. If the President broke the law, then the duty of the Senate is to "modify the law in order to make it legal" because, after all, the President broke the law for the "right reasons." As Daniel Webster warned: "Good intentions will always be pleaded for every assumption of authority. It is hardly too strong to say that the Constitution was made to guard the people against the dangers of good intentions."

It is truly astonishing to watch politician after politician -- Republican and Democrat alike - parade forward and expressly say that there may be nothing wrong with the President having eavesdropped on Americans in violation of the law.

Really - what American can grow up in this country and think that way? If it had been the case that the President merely broke the law on, say, September 13, 2001 for a few days as an emergency measure until the law could be quickly changed, that would be one thing. The lawbreaking would be wrong, but it would be a different matter altogether. Here, the President has been breaking the law for four years, deliberately and consciously. And Sen. Levin thinks that when that gets revealed, the solution is to figure out how to make the President's illegal conduct become legal.

So much for the rule of law. In the world of Sen. Levin, the new principle is: "If you think you're doing good, feel free to break the law." That isn't hyperbole or interpretation. That is really what he's saying.

(3) The Judiciary Committee, as you probably already know, is holding hearings on Friday on Sen. Feingold's censure resolution. Christy at FDL is coordinating blogosphere action for Friday.

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