Wednesday, July 12, 2006


Department of Justice Denies Hamdan Touches NSA Spying

by Kagro X

Yes, I told you this yesterday. But that was just some lowly staff attorney, forced to argue the brief he'd prepared prior to Hamdan, right?

So for clarification, we now turn to the Justice Department brass. Assistant Attorney General Bill Moschella explains it all for the slow of mind and other peasants, like one Chuck Schumer of New York, NY:

Our initial impression is that the Court's opinion does not affect our analysis of the Terrorist Surveillance Program.

So good day, all! Thanks for playing!

Anonymous Liberal picks up the story, (I forwarded the letter to him, after receiving it from our pal, Adam B) and performs a genuine analysis, as opposed to my hit-and-run. But here's the gist of it:

I've previously noted that the Supreme Court's decision in Hamdan fatally undermined the only two legal theories the Bush administration has ever offered in defense of its warrantless surveillance program (theories which, by the way, were borderline frivolous even before Hamdan). ...

Well, sadly, it appears I had a little too much faith in the integrity of the government's lawyers. In response to a letter from Senator Schumer concerning the application of Hamdan to the "Terrorist Surveillance Program," the Department of Justice has drafted a letter reaffirming its position that the AUMF and article II authorize the President to disregard the prohibitions of FISA. As David Barron puts it, the DOJ's response is, essentially, "Hamdan, Schmamdan" (a big hat tip to David for highlighting these letters and posting them on his site).

Well, better late than never, in some cases. Me, I lost faith in the integrity of the government's lawyers back when they took advantage of the judicial branch's built-in safety valve against "criminalizing politics", and decided to overrule the entire voting rights staff in approving facially discriminatory Congressional redistricting plans.

It's all of a piece, to my mind:

Just as with Plamegate and all "stovepiping" progeny, where the claim will be that it's within the presidential prerogative to redirect (and if necessary, reassemble from spare parts or whole cloth) the authorized and legitimate intelligence services of the United States. And just as with DeLay's money laundering, with the K Street Project, with Jack Abramoff's staggering corruption, and with who knows what else is yet to be unearthed, where the claim is that to single such activity out is to "criminalize politics," so with the Texas redistricting do we see that it is the intention of the occupying forces to actively employ the standards of deference ... as cover for their wrongdoing, because they know that no courts (save the "activist" ones!) have the tools to reach them without throwing out time-honored and otherwise quite reasonable restraints against the (real) government's power to levy punishment and mete out justice.

No surprise, then, to see the "administration" back in court, claiming Hamdan is of no effect beyond its four corners, and failing that, that the "state secrets" privilege precludes all inquiry.

Jack Balkin weighs in on the issue of the letters, thus:

Whatever else one may think of the DOJ's arguments in support of the NSA program, the notion that Hamdan "does not affect" the relevant legal analysis is so implausible as to suggest either bad faith or an audacious design by the Administration to provoke a confrontation with the Court (a confrontation that the Administration must suspect it would almost certainly lose if the case were considered by the current array of SCOTUS Justices). [Emphasis mine.]

Ah, there it is. Bad faith -- the very thing which must be demonstrated by the Texas redistricting plaintiffs to overcome the presumption that the DoJ's rubber stamping is within legal bounds.

An audacious design by the Administration to provoke a confrontation with the Court -- the very thing which Mark Tushnet's "constitutional hardball" article describes as necessary to remaking the constitutional order.

Now, we're onto something.

Keep in mind in all of this that these practicers of bad faith, these audacious designers, are the very people we'll be asking to execute the enforcement of Congressional subpoenas in the event the Democrats can successfully launch investigations into the "administration's" activities.

Not only does the emperor have no clothes, the emperor might not even be leading a government, in the sense that you and I and everyone else in America have ever understood it.

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