Two more excellent posts by Glenn Greenwald on the Bush’s Administration’s illegal searches. First, he finds Hugh Hewitt citing United States v. United States District Court (1972) on behalf of Bush’s position, although the case found that the Fourth Amendment requires judicial approval for domestic wiretapping. Indeed, the Court makes an argument against Bush and his defenders quite powerfully:
These Fourth Amendment freedoms cannot properly be guaranteed if domestic security surveillances may be conducted solely within the discretion of the Executive Branch. The Fourth Amendment does not contemplate the executive officers of Government as neutral and disinterested magistrates. Their duty and responsibility are to enforce the laws, to investigate, and to prosecute. [cite omitted] But those charged with this investigative and prosecutorial duty should not be the sole judges of when to utilize constitutionally sensitive means in pursuing their tasks. The historical judgment, which the Fourth Amendment accepts, is that unreviewed executive discretion may yield too readily to pressures to obtain incriminating evidence and overlook potential invasions of privacy and protected speech.
So, this case is clearly an argument against Bush and the conservertarians. The only way around it is to carry on the fiction that Al Qaeda is the agent of a foreign country–which runs into the obvious problem that it isn’t–and even with respect to those cases the opinion is merely noncommittal. So to the extent that this case has relevant content, it cuts against the position of the adminsitration (and Hewitt, although of course this is a distinction without a difference.)
Secondly, he points out that the administration itself isn’t claiming that FISA authorizes the wiretap:
For that reason, Condoleezza Rice went on Meet the Press yesterday (h/t Firedoglake) and did not even attempt to argue that the Administration complied with FISA. To the contrary, Rice said that FISA was now obsolete (even though it is still sort of the law) and, based on that view, justified the Administration’s violations of FISA. Rice claimed that this warrantless eavesdropping on America citizens was authorized not by FISA, but by so-called unspecified “additional authorities that [the President] has under the Constitution and under other statutes.
So the administration is a less hackish defender of itself than Jeff Goldstein, who continues to defend the government’s actions as being authorized under FISA, approvingly quoting an argument that admits that it’s going beyond a “literal” reading of the statute and tries to claim that Al Qaeda is the agent of a foreign power, despite the fact that 1)it’s clearly not–for what foreign country is Al Qaeda an agent?–and 2)it is impossible to understand why the statute would make the distinction between foreign powers and terrorist groups if it defined foreign powers that broadly. So, amazingly, in a post in which Goldstein is upset about the fact that I questioned his civil libertarian credentials, he continues to put forward a hyper-statist statutory interpretation so implausible that not even the administration itself is trying to sell it! He also addresses the Fourth Amendment argument with a long quote from Hewitt, while ignoring the fact that the case actually repudiates his position.
So needless to say, I stand by my characterization of Goldstein’s arguments. His claims to be strongly committed to civil liberties are simply not credible, given that the plain reading of the law would clearly hold Bush’s actions illegal under both the Fourth Amendment and FISA, and to hold otherwise requires gymnast-like contortions of the law made by such well-known dispassionate supporters of civil liberties as Hugh “Harriet Miers is a solid B+” Hewitt and Mark “Who are you gonna believe about the government’s torture reports, me or someone who’s read them?” Levin. He criticizes me for not considering a comment in one of the two long threads, but it’s clear that both of the posts in question place considerable weight on the administration’s claims of legality, which is why he can’t come up from anything from the posts themselves that contradicts my reading. And he continues to think that the Administration’s assertions of legality mean something. To be clear, I have no idea whether the administration is acting in “good faith.” They may have convinced themselves that their actions are constitutional; I can’t know, and I don’t care. What matters in a democracy is whether their public legal justifications are convincing. And they certainly aren’t.
And, again, it’s worth noting here that perhaps you can make an argument that the program is legal if you want to both give FISA an exceptionally implausible (indeed, considering the statute as a whole, nonsensical) reading and to give the Fourth Amendment an extremely narrow reading. But if–like Goldstein–you’re doing this, it becomes ludicrous to claim that you’re committed to civil liberties. We not dealing with something as ambiguous as, say, the cruel and unusual punishment clause here; in this case, the civil libertarian position is compelled by a straightforward textual reading of the relevant statute and constitutional provision, while Goldstein’s hyper-statist position requires leaps and bounds that even the defenders of the arguments admit go well beyond a literal reading. And these readings would obviously greatly expand the arbitrary power of the executive. So whatever you’ve subjectively convinced yourself, when you try to make these kinds of arguments and then claim that you’re a civil libertarian, you’re not going to be taken seriously. As Jim Henley noted about another alleged libertarian who can always find a way to justify even the most legally dubious state power when it’s George Bush’s power in question, Goldstein’s succession of posts here consists of “bog-standard Republican authoritarianism, Kaye Grogan but in well-turned prose.”
If people who advance such arguments on the basis of the laughably tendentious arguments of utterly in-the-tank Bush hacks like Hugh Hewitt don’t take me seriously, I wear it as a badge of honor. Or, to put it another way, Goldstein is advancing a conception of “civil libertarian” that can encompass Michelle “In Defense of Internment” Malkin, Richard Nixon, and John Yoo. The utility of such a definition I leave to the reader.
People who support a clandestine program of warrantless domestic spying are not “conservatives” or “libertarians.” Neither are people who support the creation of a worldwide archipelago of secret torture sites. Neither are people who support the usurpation of the functions of government by the executive branch; who espouse the theory that the executive branch is the final arbiter of the legality of the actions of the executive branch; and who call for the investigation or prosecution of a free press that dares to report on the executive branch’s secret programs of domestic spying and outsourced torture
Those people, my friends, are called the radical right.
…as Sam notes, the White House has embraced
Carl Schmitt’s Goldstein’s “we took an oath, so how can what we’re doing be illegal?” theory.