Friday Roundup

May 18, 2007

Marty Lederman asks why President Bush, who believes he has the unilateral power to institute a warantless wiretapping program, would have sought the approval of a hospitalized John Ashcroft:

There are probably two reasons that Ashcroft's certification was thought to be of such importance. The first was that DOJ sign-off was necessary to give some comfort to the NSA. If you were NSA General Counsel, how would you react if the President asked you to engage in conduct that is on its face criminal; if you learned that Jack Goldsmith and John Ashcroft of all officials, concluded that there was no legal way around the statutory restriction and refused to be associated with it; and if the only justification the President offered you for obeying his order was that he was adopting David Addington's, uh, shall we say idiosyncratic, view of the Commander-in-Chief Clause, notwithstanding that such attorneys as Goldsmith and Ashcroft thought it was untenable?

Would you ask your employees to go ahead and do things that FISA prohibits under those circumstances?

Second, the AG signature might have been necessary to induce the requisite private actors -- telcom companies in particular -- to continue to go along with the program.

18 U.S.C. 2511(2)(a)(ii) provides that "providers of wire or electronic communication service, their officers, employees, and agents, landlords, custodians, or other persons, are authorized to provide information, facilities, or technical assistance to persons authorized by law to intercept wire, oral, or electronic communications or to conduct electronic surveillance, as defined in section 101 of the Foreign Intelligence Surveillance Act of 1978, if such provider, its officers, employees, or agents, landlord, custodian, or other specified person, has been provided with -- (A) a court order directing such assistance signed by the authorizing judge, or (B) a certification in writing by a person specified in section 2518(7) of this title [not relevant here] or the Attorney General of the United States that no warrant or court order is required by law, that all statutory requirements have been met, and that the specified assistance is required." That statute further provides, importantly, that "[n]o cause of action shall lie in any court against any provider of wire or electronic communication service, its officers, employees, or agents, landlord, custodian, or other specified person for providing information, facilities, or assistance in accordance with the terms of a court order, statutory authorization, or certification under this chapter."

Now, imagine you are the CEO or General Counsel of a telcom company that has been assisting the NSA in electronic surveillance for two years, assured that what appear to be your violations of FISA do not subject you to legal exposure because you have been relying on the certification "by the Attorney General of the United States that no warrant or court order is required by law." And then one day,the AG's signature disappears from the certification -- replaced only by the President's own signature. What do you do?

Senators Norm Coleman (R-MN) and Kit Bond (R-MO) call on the Attorney General to resign.

Frank Bowman calls on Congress to impeach Gonzales.

The reality is that “stop snitchin” is not, as the media and many law enforcement spokespersons have made it out to be – a peculiarly urban (read: black) drug gang pathology. Nor is it new. It’s an enforcement mechanism used by any group that holds power illegitimately and that fears the loss of its power. In the criminal realm, the Mafia (read: white organized crime) violently imposed a form of stop snitchin’ for decades. But governmental agencies and administrations can also enforce “stop snitching” codes. They do it by retaliating against snitchers – or “whistleblowers.” The outing of undercover CIA operative Valerie Plame to punish her husband for revealing that the Bush Administration’s claims about alleged Iraqi efforts to purchase uranium from Niger were false, was a form of “stop snitchin’” retaliation. Outing Plame also served as a message to other would-be whistleblowers.

A University of Georgia study finds that Voter ID laws place a thumb on the scale in favor of conservative candidates.

New York Governor Eliot Spitzer (D) issued an executive order allowing childcare workers to unionize.

Scott Lemieux discusses the implications of Justice Scalia's theory of constitutional interpretation:

But we should be clear about the implications of Scalia's theory. To the extent that it has any content at all--that its conception of national traditions isn't so open-ended that it could justify any outcome in any interesting case--Brown v. Board and Loving v. Virgina, for starters, are clearly incorrectly decided. The text of the equal protection clause is ambiguous, and there were long, deeply embedded national traditions of requiring segregated schools and prohibiting interracial marriages. Once we've decided that national traditions bind courts and pre-empt the critical assessment of institutional practices and their consistency with the requirements of the Constitution, one can't pick and choose which traditions count and which don't. Far from being an attractive method, Scalia's concept of unassailable traditions of injustice is at war with the best traditions of American constitutionalism.