You're kinda big on this rule of law stuff, aren't you, Spotty?
Yes grasshopper, Spot is. You may remember he wrote a week ago about a playwright's version of Sir Thomas More's defense of the rule of law. At the time, Spot was discussing the partisanship that had not merely crept, but galloped, in to the selection of personnel at the Department of Justice.
Now with the recent testimony of the former Deputy Attorney General James Comey before the Senate Judiciary Committee, we have another very specific example of the lawlessness of the Bush administration, and in particular the man currently sitting as Attorney General, Alberto Gonzales.
Comey tells the story of Andrew Card and Gonzales' effort to get the—controversial to put it mildly—warrantless wiretap program reauthorized over Comey's objection. Comey was at the time Acting Attorney General when John Ashcroft was seriously ill. Here's what Marty Lederman at Balkinization says about it:
Former Deputy Attorney General James Comey just completed his testimony before the Senate Judiciary Committee. Much of the testimony concerned the incident on March 11, 2004, when Comey, AG Ashcroft and AAG Jack Goldsmith (OLC) refused to sign off on the legality of the NSA "terrorist surveillance" program.
Unfortunately, I missed the first half of the testimony. CSPAN did not cover it, and I'm told that committee webcasts are not recorded! (which seems remarkably short-sighted). But Paul Kiel's very helpful summary is here, and I now have a transcript of the testimony. READ IT. It's just about the most dramatic testimony I can recall in a congressional committee since John Dean. [italics are Spot's]
If that isn't enough to make the hair on the back of your neck, or maybe on your whole back if you're like Spot, stand up, consider another post at Balkinization, this time by the eponymous Jack Balkin titled Nixon's Ghost. A few snippets:
First from a David Frost interview of Richard Nixon:
Mr. David Frost: So what in a sense you're saying is that there are certain situations . . . where the President can decide that it's in the best interests of the nation or something, and do something illegal.
Mr. Nixon: Well, when the President does it, that means that it is not illegal.
Mr. Frost: By definition.
Mr. Nixon: Exactly. If the President, for example, approves something, approves an action because of national security, or, in this case, because of a threat to internal peace and order, of significant magnitude, then the President's decision in that instance is one that enables those who carry it out to carry it out without violating a law. Otherwise they're in an impossible position. [italics are Spot's]
And now from the Comey testimony:
SPECTER: OK. Well, now I understand why you didn't say [continuing the NSA program without Justice Department reauthorization] was illegal. What I don't understand is why you now won't say it was legal.
COMEY: Well, I suppose there's an argument -- as I said, I'm not a presidential scholar -- that because the head of the executive branch determined that it was appropriate to do, that that meant for purposes of those in the executive branch it was legal. I disagreed with that conclusion. Our legal analysis was that we couldn't find an adequate legal basis for aspects of this matter. And for that reason, I couldn't certify it to its legality.
George Bush did reauthorize the program without the DOJ certification, according to Dahlia Lithwick at Slate:
Next day, crisis averted. Comey and Mueller each met one-on-one with the president and persuaded him to "do the right thing, and put the program on a footing that we could certify its legality," Comey says. We don't learn exactly how long the program went on operating illegally while the Justice Department made its fixes, but it was around three weeks. We really know only that the president was quite willing to forge ahead with an illegal program.
Sen. Arlen Specter, R-Pa., is so aggrieved by Comey's revelations that he looks like he might cry. He frets that Schumer took too much time questioning the witness and then grouses that his Republican colleagues haven't shown up, leaving him alone (and "lonely") with seven (grinning) Democrats.
Specter does get Comey to admit that the president ultimately did the right thing by modifying the program. Also that nobody overtly threatened Comey. Or maimed him. But Comey gets one more chance to launch his main zinger: "They went ahead and reauthorized the program without my signature." And that's about all he needs to say. The White House went ahead and reauthorized a controversial, presidential-power-grabbing program deemed illegal by the Justice Department, after trying to extract permission from a critically sick John Ashcroft who didn't quite know what day it was.
Every time we have elected a Republican administration since Dwight Eisenhower, it has proven its disrespect for the rule of law: Watergate, Iran Contra (the Boland Amendment), and now this. Spot was just a pup during the Eisenhower administration. Every Republican president in Spot's long adult life has been a crook who put constitutional government at risk.