Breakin' The Law, Breakin' The Law

(Cross-posted at Kakistrocracy)

I first found Glenn Greenwald in the immediate aftermath of the NYT's story on what has become known (question beggingly) as Bush's "Terrorist Surveilance Program". With his careful legal analysis and forceful rhetorical style, Greenwald demolished one 'defense' aftrer another. Unsurprisingly, he quickly became a star of the left blogosphere. To a degree, this proved his undoing - as I noted in my review of his book, his authoritativeness on legal matters has been obscured by his work on seperate, though related, topics.

However, in the wake Judge Anna Diggs Taylor's ruling (.pdf) that the TSP is not only illegal, but unconstitutional, Greenwald is back on his firmest footing.

In response to crticism of the ruling lack of factual underpinnings (specifically, see Publius for a series of excellent posts, critical of the reasoning,) Greenwald makes some key points based on the procedural status of the case. Money Graf:

[A] principal reason why Judge Taylor was somewhat conclusory in her analysis of some issues, and the reason she repeatedly said that certain propositions were "undisputed," is because the Bush administration either failed or chose not to dispute them. Specifically, the Justice Department was so intent on telling the Judge that she had no right to even rule on these issues (because the NSA program is a "state secret," the legality of which the court cannot adjudicate without damaging national security and/or because the plaintiffs lack "standing"), that it basically chose not to address the merits of the plaintiffs' case at all.

To a great extent, this is the chickens coming home to roost - if the first rule of Fight Club TSP is that you don't talk about TSP, your silence can be used against you. Despite multiple rulings to the contrary:

the DoJ twice tried to convince Judge Taylor not to rule on the substance of the ACLU's claim, but instead to rule first on the DoJ's "state secrets" argument. Twice, the court refused this request, ordering the DoJ to address the merits of the case . . . But the DoJ essentially refused to do so, and devoted almost all of its brief (.pdf) to arguing why the court lacked the power to adjudicate these issues, and almost none of its brief to arguing about the issues themselves. As Marty Lederman put it once he read the DoJ's Brief: it "did not quite advance or support in any detail that argument -- or any other merits argument, for that matter."

As this excellent Comment to [law Professor Orin] Kerr's post reflects, the Bush administration's refusal to address the merits of the claims (which is part and parcel of its general contempt for the role of the courts in scrutinizing its conduct) meant that Judge Taylor was not only entitled, but was required by the Rules of Civil Procedure (Rule 56), to treat the ACLU's factual claims as undisputed for purposes of deciding the motion.

In a seperate post, Greenwald (along with Professor Laurence Tribe) points out what should be obvious - all the focus on the "quality" of Judge Taylor's (often from the same parties who had significantly, uhm, fewer problems with the "quality" of Bush v. Gore) is a distraction from the:

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. . .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. (emphasis Greenwald's)

As satisfying as such a finding of criminality might be, there is a big question over the horizon - what then?

Of course, the easy answer is "Impeach! Impeach! Impeach!" but that presupposes A) a Democratic landslide in the upcoming midterms and probably B) a willingness to put everything else aside. Incidentally, there is also a concern about not making this into Monica Lewinsky II: Electric Boogaloo - for me, this can not be a partisan witch hunt.

Screw the politics for a moment, the most destructive aspect of the TSP scandal (as well as related issues of torture and rendition) has been the revelations of the manner in which "the system" has been subverted, the protections and procedures enscribed in the Constitution overrun with certain classes cheering all the way, either not knowing or not caring (or in the case of the Cheney/Addington/Yoo authoritarians actively desiring) the destruction wrought upon the carefully checked-and-balanced scheme which has served this country pretty well, thank you. And using this incident as a chance to say "gotcha!" rather than repairing and reinforcing our institutions is both short-sighted and irresponsible.

Nailing this liar to the wall would feel fantastic in a playground revenge sort of way, but we also have to remember that this is not a game, there are real concerns both foriegn and domestic, and focusing on shredding what's left of the the Bush legacy allows that legacy's main aspect, the destruction caused by his brand of incurious incompetence to grow and grow.