More on FISA

The FISA amendments, (disgustingly titled the “Protect America Act”), which I discussed briefly yesterday, are still the big controversy today. Most of the buzz is pretty negative.

A New York Times editorial slammed PAA as “yet another unnecessary and dangerous expansion of President Bush’s powers, this time to spy on Americans in violation of basic constitutional rights.” Reason’s Julian Sanchez wonders if the country isn’t, “[l]ike Bill Murray’s hapless weatherman in Groundhog Day… locked in a perpetual September 12, 2001.” Obsidian Wings reminds Americans to “understand that FISA didn’t arise out of abstract policy debates. Congress enacted FISA in response to decades of well-documented, egregious abuses of secret, unchecked surveillance authority (generally in the name of fighting the enemy, who was then Communism).” TPM Muckraker also suggests that the Administration’s assurances of careful targeting should be taken with a grain of salt.

NRO Online’s Andrew McCarthy is apparently not a student of history. He argues that FISA allows judges to manage national security and that the law should be taken off the books altogether. He claims that the Constitution “empowers the chief executive to conduct warrantless surveillance of foreign threats.” Ignoring the facts altogether, he even states that “a judge on the FISA court outrageously ignored the FISA statute.” In fact, that isn’t true at all, which was, in theory, the reason an amendment was needed in the first place. Know-nothingism at its finest, ladies and gentlemen.

Mayer on Torture, Plus FISA Updates

The big news today is, of course, the Jane Mayer piece in the New Yorker describing the secret CIA detention facilities used post-9/11. Some truly frightening stuff in there. Example:

Finally, [Rep Alcee Hastings] received some classified briefings on the Mohammed interrogation. Hastings said that he “can’t go into details” about what he found out, but, speaking of Mohammed’s treatment, he said that even if it wasn’t torture, as the Administration claims, “it ain’t right, either. Something went wrong.”

There’s much worse in there than that, too. Here’s Marty Lederman’s pretty thorough discussion of the article.

On a related note, the Democrats capitulated to the Administration on an update to FISA. Jack Balkin is disgusted. TPM’s Greg Sargent responds by pleading with the Democrats to remember why they were elected. Orin Kerr isn’t as critical. I tend to agree with Balkin on this. Even if the amendment isn’t so bad on its face, the potential for abuse is enormous, and I remain unconvinced that this was the best (or even a particularly good) solution to the Administration’s FISA problems.

Democrats, Republicans, doesn’t seem to matter most of the time. All worthless. Being informed is such a drag.

The Rundown

• Harvard’s Kenneth Rogoff has an interesting piece on healthcare in the Guardian’s “Comment is Free” feature.
• The Tenth Circuit held that Oklahoma may not treat out of state adoptions by gay couples differently than it treats such adoptions by straight couples.
• Senior Senator of my home state Arlen Spector, has a pretty level-headed editorial about immigration in today’s WP. Unfortunately, he is probably not doing himself any favors in his next contest with this stance.
• A challenge to the NSA wiretap program may have a chance, since the Department of the Treasury accidentally gave the defendant’s lawyers a copy of the NSA Call Log. Oops.
• Stephen Bainbridge, guest-blogging for Andrew Sullivan, demonstrates that the similarities between the president and his father are greater than they would seem, and not in a particularly flattering sense.
• Matthew Yglesias conveys some foreign policy wisdom Obama dropped re: China at YearlyKos.

The Rundown

• Princeton’s Anne-Marie Slaughter urges a new approach to promoting democracy.
• Eugene Robinson finally gets around to pointing out the 800-lb gorilla in the room in an article entitled “Will White America Elect Obama?”
• Lilly Ledbetter, she of the recent controversial Supreme Court case Ledbetter v. Goodyear Rubber & Tire Co., calls for Congress to take a stronger stance against gender-based pay discrimination.
• Matthew Yglesias, responding to Stanley Kurtz, basically agrees with the position I took yesterday regarding academic tenure.
• Tom Ridge and Gen Barry McCaffrey argue for a renewed commitment to improving American soft power and diplomacy.

The Hollow Horn

• One pretty solid positive for Fred Thompson: he has spoken out against the growing federalization of criminal law.
• Is Barack Obama, as this Slate article suggests, “all sizzle and no steak”? Meanwhile, Matthew Yglesias weighs in on the Clinton-Obama foreign policy spat here, and I agree.
• I am not the only one who thinks Edwards’ advocation of capital gains tax hikes may not be the best way to go about raising the funds our government needs to pay its debts. Tyler Cowen weighs in here.
• Good news, travelers: David Kopel makes a fairly compelling case that sometimes flying really is better than driving.
• Foreign Policy asks, “What’s wrong with this foreign policy?”

Good Samaritan Laws

Amitai Etzioni suggests over on TPM Cafe that the US should enact “duty to assist” or “Good Samaritan” laws that legally obligate individuals to assist others in distress. He argues that such laws would provide our society with moral grounding in uncertain times. He points to other states, including Israel, Japan, and several in Western Europe that have similar laws.

I am not persuaded.  First, Etzioni relies far too heavily on anecdote and emotional appeal. He opens with a shocking story of an innocent woman stabbed in a convenience store who died of her injuries while others ignored her with callous indifference. (I suppose we are to infer she might not have died if she had received care, although Etzioni conspicuously fails to state it). He later suggests that those who don’t support such laws would reconsider if their child died as a result of similar indifference. This is simply bad form, particularly the “think of the children” argument. It is intellectually lazy and does not contribute anything substantive to the debate.

Second, I am with the libertarians on this one. I am fairly certain a number Constitutional arguments could be made against such a law. Even if they couldn’t, such a law would by necessity be incredibly vague and subject to a huge range of interpretations, some of which I find unappealing. Etzioni is not persuaded, because we have a number of other vague laws on the books, but I don’t buy that argument either. Simply put, I believe a sense of civic duty can and should be instilled by educators and family, and not the government.

The Rundown

• Marty Lederman makes a pretty convincing case that AG AG’s semantics games about the Terrorist Surveillance Program lack any substance.
• Hell freezes over: Rudy writes an editorial I more or less agree with. Carbon sequestration is still a little pie-in-the-sky, IMHO, but that’s something of a quibble.
• Even some of the “loyal Bushies” are uncomfortable with the executive order interpreting the Geneva Conventions. Marty Lederman follows up here.
• More on postwar Iraq from Matthew Yglesias. This is very well-written.
• Arlen Spector apparently feels betrayed by Chief Justice Roberts’s decisions this term. So much so that he has pledged to probe said decisions.
• Brad DeLong posts an interesting story about Herbert Hoover in China.

Speaking of Contempt: Alberto Gonzalez

Attorney General Gonzalez (“AG AG” if you prefer) testified before the Senate on Tuesday. Doubtless, you already know it was a disaster on par with his previous testimony. Arlen Spector (R-PA), who isn’t exactly a frothing-at-the-mouth left-winger, effectively suggested to Sen. Leahy (D-VT) that Gonzalez had perjured himself. TPM Muckraker has pretty much shown already that Gonzalez’s claim that he went to see Ashcroft in the hospital at the prerogative of a bipartisan Congressional group is bogus.

Slate’s take on the whole thing is pretty harsh as well. This is a trainwreck, and it is a sign that the executive branch is totally out of control that it refuses to rid itself of Gonzalez. Gonzalez is a man so incompetent that he actually makes John Ashcroft look good. Think about that. John. Ashcroft.

Meanwhile a WP article summarizes Conyers’s memo arguing that the US attorney firings may well be criminal.

More on Executive Privilege

Not everyone sees the developing executive privilege showdown the way I do. (Shocking, I know). Eugene Volokh argues that separation of powers dictates that Congress cannot, in fact, mandate a prosecution, as it removes the executive branch’s traditional prosecutorial discretion. He also argues that a Justice Department (executive branch) official cannot be forced to prosecute when he believes the defendant to have committed no crime. It’s a pretty solid legal argument, but he doesn’t deny that Congress has other options.

John Yoo, on the other hand, unsurprisingly makes a shriller version of the same argument in the WSJ. Unlike Volokh, he can’t resist the urge to throw in partisan potshots at Bill Clinton’s privilege claims, the current Congress, and Democrats in general.

He also goes a step further than Volokh, arguing not only that the US Attorney doesn’t have to prosecute the contempt citation, but rather that Congress lacks any legal authority whatsoever to prosecute here, because of his belief that the privilege claim is legally sound. Of course, he misses a critical distinction in so doing. Traditionally, when Congress subpoenas someone, they express willingness to testify and attempt to do so, whether the Administration wants them to or not, and then it is up to the Administration to seek an injunction in court for its privilege claims. Here, the Administration is telling people not to testify, and they are refusing to testify. This leaves far less space for a legal challenge to the privilege claim and makes everything a whole lot fuzzier.

Good News, Everyone!

…For those of you who still didn’t think the administration’s previous executive privilege claims went far enough. An article in Friday’s WP reports that Bush’s people aren’t going to face any contempt of court proceedings because … wait for it … they are going to tell the US attorneys not to bring any such proceedings. Amazing. As Mark Kleiman puts it at RBC, “Almost Nixonian? No. More than Nixonian.”

Marty Lederman at Balkinization (rightly) pats himself on the back for predicting that referring a contempt citation to the Bush Justice Department wasn’t going to fly.  The second of those two linked Lederman posts does a pretty good job of running down what Congress’s legal options are in light of the present stonewalling. Basically, Congress can actually conduct contempt proceedings itself, which it hasn’t done since 1935, or, it can bring the executive privilege question to civil court.

An option Lederman doesn’t discuss, but Kleiman does, is a political solution: Turn the vintage Gingrich defunding threat around on the Republicans, but don’t take it to the extreme he did. Work items into the appropriations bill that defund the White House Counsel, and its press and political offices. Cripple the Attorney General’s office. The public doesn’t know enough about them to care, but it sure would be damaging to the Administration spin machine. In my opinion, this option is the way to go.