Yesterday, Geoffrey R. Stone, Distinguished Service Professor of Law at the University of Chicago, published a carefully reasoned legal argument by himself and thirteen other legal alumni - every single one an acknowledged expert and most with high government offices in the legal field under their belts too. We're talking senior professors, Presidential councils, even a former CIA director.
The subject? Bush's ordering of NSA surveillance on American citizens.
The conclusion? It was clearly illegal and unconstitutional.
The reaction by rightwing legal bloggers and blogging lawyers? Sssshhh...listen to the tumbleweed...
Not a single one of them has mentioned it, had a counter to it, anything. Not Glenn Reynolds, not Eugene Volokh...no-one!
Which tells you everything you need to know. They had already figured out it was illegal from word one, folks - everything else was smokescreen.
Now here's the fun part. When Bush's legal team came up with the justifications for NSA surveillance, they must have known that some bright sparks would eventually publish a counter-argument like Stone's. They must have realized that their legal arguments were shaky at best and completely spurious at worst. You would have thought a rational administration "for the people" would have had second thoughts at that point and found another way to do things instead of the NSA taps. But the Bush White House went ahead with the whole caper anyway. They thought no-one would find out about the secret wiretaps and the legal stuff was only ever meant to be a contingency cover-ass so no-one bothered much with making sure they were on the right side of the law. To me, that shows the Bush administration has a complete arrogant confidence in its own power and knows it is untouchable.
But as Jon Henke said at Q&O blog when Snoopgate first broke, that's ok for the Bush cheerleaders right now but would they be so happy if Hillary Clinton became President and kept on using Bush's rationale to spy on Americans?
I'm going to repeat something I said yesterday.
The great danger with arguing that a national leader is above all law except that which he himself decides on is that matters then depend entirely on the character of the Leader of the moment. That character could think using dissenters as human torches to light garden parties is a good idea, for instance. Once the precedent of "I am The Law" is set then every President will use it, be they Julius, Claudius...or Caligula.
To many here on the Left, Bush is getting pretty close to an elected despot. Some of us are even beginning to wonder, understandably, whether he would actually step down if the '08 elections didn't come out the way he liked or if he would try to use that Presidential power of Law to stay in office. However, I would like to remind the wildest cheerleaders for Bush that if democracy takes it course, they might one day see a liberal President they would feel was a latter day Caligula.
Do they really want to hand every President from now on this much power?
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