Irony: Bush's reversal on NSA, a desperate move, exposes admin's legacy of bullying, deceit

[ProSense]

Thursday, January 18, 2007

The Bully Presidency

JB

I want to second Marty's excellent post on the Administration's apparent reversal on judicial review of the NSA domestic surveillance program and make only a few additional comments.

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When we put these two stories together, a pattern emerges: the Administration repeatedly takes unreasonable positions about its powers. It insists that obedience to these views is necessary to the very survival of the Republic and that those who would dare to disagree are jeopardizing national security. It makes these aggressive claims repeatedly in every venue, hoping that others, cowed by its aggressive self-confidence and patriotic appeals, will be overawed and simply give in. It struts and boasts and threatens and exaggerates until its bluff is called, at which point its previous assertions simply become-- as they once put it in the Nixon Administration-- inoperative. Put another way, the Administration's stance on Presidential power has resembled nothing so much as an altogether familiar character, the neighborhood bully.

If that is so, the best policy for Congressional Democrats and those who oppose the President's high-handedness is not to give in to the Administration's exaggerated and aggressive views about its own power, but rather to repeatedly call the President to account whenever he overreaches. The only way to deal with a bully, it seems, is to stand up to him.

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It is possible that the Administration is being deliberately obscure on this point, and that it is, in fact, engaged in broad spectrum data mining of the kind hinted at earlier. But for the moment, we must take it at its word-- at least, that is, until we find, once again, that it has not spoken the truth.

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Someday, historians will look back on this Administration and regard it as the worst friend the Presidency ever had. It was so eager to amass power that it threw claims of power into disrepute. It stretched the truth and backtracked on its most vigorously asserted claims so often that few believed it any more when it talked about national security. It tried so hard to assert its legal authority that it squandered much of its moral authority. George W. Bush and his cronies did the Executive branch no favors; we can only hope that the next President actually does what Bush said he would do in 2000-- restore honor and dignity to the Presidency.

Wednesday, January 17, 2007

Terrorist Surveillance Program . . . Never Mind? Or New and Improved (and "Complex and Innovative")?

Marty Lederman

Hmmmmm . . . this is a twist. The President has "determined not to reauthorize the Terrorist Surveillance Program when the current authorization expires," and the Department of Justice will now submit its surveillance applications to the FISA Court for approval. Indeed, this volte-face apparently is the result of the fact that DOJ has convinced a FISA judge to issue "innovative and complex" orders in one precedential case already. So says a new letter from the AG to Senators Leahy and Specter.

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Is the FISA court being asked to determine whether partilcular instances of surveillance satisfy FISA's substantive standards? (Presumably, but who knows?) To somehow do so on a category-wide basis, issuing generalized rather than case-specific orders? (That would be "innovative," that's for sure! Hard to see how the statute would allow it.)

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Curiouser and curiouser . . .

(UPDATE: Without knowing anything more about it, my sense is that this is probably a beneficial development, whatever its impetus might have been. I find it very difficult to imagine that the FISA court would roll over and approve an "innovative" legal theory if it were dubious -- especially not in this context, where DOJ has many incentives to get the FISA court on-board and where the congressional and public spotlight is shining so brightly. Without the New York Times, and Judge Taylor, and the 2006 election, this would never have happened. Sunshine is the best disinfectant, and all . . . . Even though the public might never find out exactly what's up here, presumably Congress and the FISA court are now acting as some not-insignificant checks. And if so -- if the extreme and unilateral positions of the Executive are a thing of the past here, the system has worked.

But that's only a tentative judgment, of course.)

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ANOTHER GOOD SIGN:

This press release from the new Chair of the House Intelligence Committee, Silvestre Reyes:

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YET ANOTHER . . . apoplexy over at the National Review:

What is the White House thinking? Is there no principle subject to negotiation? Is there no course subject to reversal? For the Bush administration to argue for years that this program, as operated, was critical to our national security and fell within the president's Constitutional authority, to then turnaround and surrender presidential authority this way is disgraceful. The administration is repudiating all the arguments it has made in testimony, legal briefs, and public statements. This goes to the heart of the White House's credibility. How can it cast away such a fundamental position of principle and law like this?