Up-is-Downism

It's always remarkable to me how quickly and forcefully the majority of conservatives line up behind the President whenever anything remotely scandalous surfaces. There's no reservation of judgment, no 'let's see how this plays out;' there's just instant, unequivocal support. Within hours of breaking news, conservative bloggers and talking heads are already telling us that 'there's nothing to see here;' 'it's a non-story,' it's nothing but 'a scandal manufactured by moonbat Bush-haters'. They sound authoritative as they cite sources you're not familiar with (and only later learn have been distorted badly or quoted entirely out of context). And they're so bloody sure of themselves that half the time you begin to doubt your own common sense assessment of the situation. Maybe up really is down? Maybe the Emperor really is wearing clothes?

The NSA spying controversy is no different. It's not surprising to me that most conservatives are siding with the President on this one. That's to be expected. But, as always, I'm blown away by the absolute certainty of Bush's defenders. Right-wing pundits and bloggers (with a few notable exceptions) don't just claim to be right about a difficult legal question, they refuse to admit there even is a question. They insist, despite all evidence and common sense to the contrary, that the President is on rock-solid legal footing and that no "serious" person could possibly believe otherwise. If you don't believe me, try spending a few hours debating with the commenters on even the most reasonable of right-wing blogs. It's a maddening experience. Many of the commenters won't even concede points that the administration itself has conceded (such as the fact that the spying at issue doesn't comply with FISA). Before long you start to think you're crazy, and you begin to question everything you thought you knew.

Fortunately, a few people are beginning to speak up. Saturday's New York Times reports the following:

President Bush's rationale for authorizing
eavesdropping on American citizens without
warrants rests on questionable legal ground and
"may represent an exercise of presidential
power at its lowest ebb," according to a formal
Congressional analysis released today.

The analysis, conducted by the Congressional
Research Service, an independent research arm
of Congress, is the first formal assessment of a
question that has gripped Washington for the
last three weeks: Did President Bush act within
the law when he ordered the National Security
Agency to eavesdrop on Americans?

While the Congressional report reached no
bottom-line conclusions on whether the program
is legal or not, it concluded that the legal
rationale appears somewhat dubious. The legal
rationale "does not seem to be as well-grounded"
as the Bush administration's lawyers have
suggested, and Congress did not appear to have
intended to authorize warrantless wiretaps when
it gave President Bush the authority to wage war
against Al Qaeda in the days after the Sept. 11
attacks, the report concluded.

Anticipating the inevitable Republican claim that this report is the product of Bush-hating partisans, the Times hastens to add:

[A]nalyses of the Congressional Research
Service, part of the Library of Congress, are
generally seen as objective and without
partisan taint, said Eleanor Hill, who served
as a Congressional staffer for 17 years and was
staff director of the joint Congressional inquiry
into the Sept. 11, 2001, terrorist attacks.

"My experience is that they're well respected
in the Senate and House," said Ms. Hill, now a
Washington lawyer in private practice. "I don't
remember anybody attacking them for being
partisan. They're more academic in approach."

The story also reports this:

Thomas H. Kean, the former chairman of the
Sept. 11 commission, said he too doubts the
legality of the program. Weighing in for the
first time on the controversy, he said in an
interview that the commission was never told
of the operation and that he has strong doubts
about whether it is authorized under the law.
Federal law under the Foreign Intelligence
Surveillance Act, created in 1978, "gives very
broad powers to the president and, except in
very rare circumstances, in my view ought to
be used," said Mr. Kean, a Republican and
former governor of New Jersey. "We live by a
system of checks and balances, and I think
we ought to continue to live by a system of
checks and balances."

He's clearly a deranged partisan out to score political points. And speaking of deranged Bush critics (hat tip The Carpertbagger Report):

U.S. Sen. Sam Brownback, R-Kan., on Friday
said the Bush administration needed to answer
questions about spying on Americans without
court authorization. And Brownback said he
disagreed with the administration's legal
rationale, which he said could hamper future
presidents during war.

"There are questions that should be examined
at this point in time," Brownback said during a
news conference. . . .

"I do not agree with the legal basis on which
they are basing their surveillance--that when
the Congress gave the authorization to go to
war that that gives sufficient legal basis for the
surveillance," he said.

He said if the justification holds up, "you're
going to have real trouble having future
Congresses giving approval to presidents to go
to war."

As for the administration's legal position, the editors of the New Republic write the following:

[Alberto] Gonzales's case rests on a clumsy
legal sleight of hand. In a letter to Senate and
House intelligence committees at the end of
December, the Justice Department attempted
to draw a parallel between domestic
surveillance and the detention of American
citizens captured in the war on terrorism. In
the letter, Justice confidently asserted that, in
Hamdi v. Rumsfeld in 2004, "at least five
justices concluded" that this resolution
"authorized the President to detain a United
States citizen in the United States." This is
misleading in the extreme. In fact, five justices
in the Hamdi case concluded that the resolution
authorized the detention of an American
citizen seized on the battlefield in Afghanistan.
But Justice Antonin Scalia dissented, arguing:
"I do not think this statute even authorizes
detention of a citizen." And, in the related case
of Jose Padilla, four other justices--Stevens,
Breyer, Ginsburg, and Souter--explicitly said
that the congressional resolution "does not
authorize ... the protracted, incommunicado
detention of American citizens arrested in
the United States." Since five justices have
rejected the Bush administration's effort to
stretch the congressional resolution to
authorize indefinite detention of citizens
arrested in the United States, it seems likely
that the same five justices would refuse to
stretch the resolution even further to
authorize illegal domestic surveillance.

I think that as this scandal plays out, the administration's legal position will be exposed as increasingly untenable, both legally and politically. The questions raised by Bush's actions are serious and they have now survived the initial volley of Republican counter-spin. At some point, whether in court or before Congress, the administration is going to have to argue their case or back down. Sooner or later, someone will call their bluff. And, at least from a legal standpoint, they're playing with a really weak hand.