Monday, August 21, 2006

The Pig in the Parlor

Jonathan Turley, a law professor at George Washington University, provides some insight on the reason for the 'controversy' over Judge Anna Diggs Taylor's ruling that the NSA warrantless surveillance program is illegal and unconstitutional: No one wants to deal with the consequences if the ruling holds up:

While Atty. Gen. Alberto Gonzales insists that the legal authority for the program is clear and filed a notice of appeal with the 6th U.S. Circuit Court of Appeals, few experts outside of the Bush administration support the program. To the contrary, federal law seems perfectly clear in prohibiting warrantless surveillance. Even leading Republicans, like Senate Judiciary Committee Chairman Arlen Specter (R-Pa.), have denounced the surveillance program.

The far more difficult question is the implication of Taylor's ruling. If this court is upheld or other courts follow suit, it will leave us with a most unpleasant issue that Democrats and Republicans alike have sought to avoid. Here it is: If this program is unlawful, federal law expressly makes the ordering of surveillance under the program a federal felony. That would mean that the president could be guilty of no fewer than 30 felonies in office. Moreover, it is not only illegal for a president to order such surveillance, it is illegal for other government officials to carry out such an order.

For people working in government, this opinion may lead to some collar tugging. If Taylor's decision is upheld or other courts reject the program, will the president promise to pardon those he ordered to carry out unlawful surveillance?

Glenn Greenwald says it's the difference between a government action or policy being deemed unconstitutional, and a government action or policy being deemed to be a criminal offense. Bush's warrantless surveillance program is unarguably in the second category. It may also be in the first category, but that argument is less airtight than the criminal offense one:

Legal battles which involve the government typically are waged over abstract questions as to whether a particular government action (a new law or a President's order) is invalid as being unconstitutional. While such battles can generate substantial emotion, they do not typically implicate government officials personally.

But the FISA ruling from Judge Taylor is of a much different nature. The question being decided by NSA cases is, effectively, whether George Bush and his top officials, along with those at the NSA following his orders by eavesdropping without judicial approval, are guilty of felonies. ...
This has been the most bizarre part of the NSA scandal all along: the President got caught red-handed violating an extremely clear law -- he admitted to engaging in the very behavior which that law says is a felony punishable by up to 5 years in prison and a $10,000 fine -- and yet official Washington (the political and pundit classes) simply decided to pretend that wasn't the case.

They agreed to acquiesce to the administration's fiction that there are some sort of complex and difficult legal questions with which one must grapple, and that only shrill partisans say that the President is violating the criminal law. And thus, a Washington ruling class which reveled in subpoenas and criminal investigations over such towering matters as Whitewater, Vince Foster and Monica Lewkinsky has collectively decided that talk of criminality on the part of the President for how he is spying on Americans is imprudent and unserious.

The Justice Department lawyers who approved this illegal program, the political officials who ordered it, and the journalists who defended it (and have enabled this presidency) are all part of the same circle, and the very suggestion that any of this is actually criminal -- even though it is all being done in violation of the crystal clear criminal law -- is just too unpleasant, too unruly, too disruptive to admit. As Turley puts it: "The question of the president's possible criminal acts has long been the pig in the parlor that polite people in Congress refused to acknowledge."

But Judge Taylor's ruling -- with its very un-Beltway irreverence towards the President, and free of the fear of describing the President's lawbreaking as what it is -- is forcing that question out into the open, which is what explains so much of the hostility towards Judge Taylor. This judge, unknown to the Important People in academia and the political power centers, sitting in her little Detroit courtroom, has broken the rules. She used language which is uncouth (she pointed out the obvious -- that this President has pretenses to being a King) and refused to pay homage to the false orthodoxy that there are really difficult questions triggered by the President's refusal to abide by the criminal law. How irresponsible, unscholarly and unserious she is.

Which, of course, still leaves the question of why Judge Taylor emphasized the weaker constitutional issues rather than the stronger -- and indeed, utterly damning -- statutory issue.

No comments: