From Archibald Cox’s Courage to Alberto Gonzales’s Star Chamber
posted by Frank Pasquale
In its great series on the Cheney vice presidency, the Washington Post notes that “As the election season got underway in early 2004, a secret battle over the legality of warrantless domestic surveillance brought the Bush administration to the brink of a mass exodus from the Justice Department and FBI.” But there was no Saturday Night Massacre, and the illegal wiretapping continued. Its apologists complacently reassure us that there’s not a remedy for every constitutional wrongdoing, and that selective enforcement of the law is a sacred prerogative of the executive branch–especially when it’s protecting itself.
As election 2008 drags on, one of the key questions we must answer is: who will be Sarah Palin’s David Addington? Barton Gellman’s extraordinary series on the Cheney vice presidency, soon to be published as a book, shows why. Here’s a confrontation between lawyers for the NSA and the vice president’s office:
A burst of ferocity stunned the room into silence. No other word for it: The vice president’s attorney [David Addington] was shouting. “The president doesn’t want this! You are not going to see the opinions. You are out . . . of . . . your . . . lane!”
[Vito] Potenza, the NSA’s acting general counsel, and [Joel] Brenner, its inspector general, were supposed to be the ones who kept their agency on the straight and narrow. . . . .Yet neither man had been allowed to see the [domestic espionage] program’s codeword-classified legal analyses, which were prepared by John C. Yoo, Addington’s close ally in the Justice Department’s Office of Legal Counsel. Now they wanted to read Yoo’s opinions for themselves. “This is none of your business!” Addington exploded.
Berkeley law professor Christopher Kutz has written about the repugnance of secret law, but apparently it’s his colleague John Yoo’s specialty. It’s a splendid way to pursue vendettas, evade statutes, and jail innocent people indefinitely. As privacy laws are trampled and the state gets to know more and more about us, we get to know less and less about it.
September 14, 2008 at 8:28 pm
Posted in: Administrative Law, Constitutional Law
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Responses (3)
Guessed - September 15, 2008 at 12:08 pm
In trying to extend the article, what you’re doing, indirectly, is quarreling with the idea that Cheney and Addington are distinctive. First, you are already casting for “who will be Sarah Palin’s David Addington.” Is McCain inevitably Bush II, inevitably Nixon? Reagan?
Likewise, I wondered at your dig re. secret law that “apparently it’s [Kurtz's] colleague John Yoo’s specialty.” You might be implying that Yoo, just like Addington, sought to impose secrecy, and toward the ends you describe — if so, that’s not immediately apparent from the article. But perhaps you mean only that Yoo’s memos were frequently closely held at the behest of others, or that he failed sufficiently to resist a culture of secrecy. Of course, if we go down that road, blame might be very widely distributed, but also bump up against legal restrictions on disclosure.
Frank - September 15, 2008 at 1:52 pm
Yes, after voting with Bush 90% of the time, and proposing virtually identical health, energy, foreign affairs, and tax policies, McCain will be totally different from Bush. An absolute divergence–a radical shift.
And since he carefully chose the person clearly most qualified to be vice president in this time of international crisis and financial instability, we can be assured of a totally different sent of appointments in the executive branch.
Guessed - September 15, 2008 at 2:36 pm
Goodness! I was asking you to define what you were saying, and I get the lagniappe of sarcasm. Politically and legally, I am on your side on this and most of the issues you mentioned, but perhaps more cautious. Now that we have established this, why do you even care about the specifics of the WP story? Just auto-generate a set of remarks in response to every (justifiably) negative story about the Bush Administration. It can something like this: “What this story says about some members of the Bush Administration is true for them all [stick in an exception for Comey, if you like, but that starts a slippery slope]; equally so for a McCain Administration.” Unfortunately, another blog may be hard at work developing a similar template for Clinton Administration vices and Obama.
I could live with that contest, and so could you, but I doubt it’s productive. I also happen to agree with you that there’s a greater likelihood of similar secretive practices under McCain, but it requires spelling out why, and (in your field) there are painful counter-examples like the Health Care Task Force.
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