The White House's Worst Nightmare

Don't be fooled by the Bush administration's outward display of confidence in the legality of the secret NSA spying program. It's a bluff. There may well be lawyers at the DOJ and NSA who genuinely believe that their legal arguments should prevail, but as any litigator will tell you, there's often a big difference between what you think the law should be and what you think the law is. Any decent lawyer--and there are many who work for the administration--can quickly gage the relative strength of a legal argument. This is why nearly all cases settle out of court. This skill has nothing to do with your political ideology or personal biases; it's just a matter of surveying the legal landscape--the facts of the case, the relevant statutes, the case law, the forum--and predicting the likelihood that, at the end of the day, your argument will prevail.

Now, I've read the DoJ's white paper in its entirety, more than once, and I feel entirely confident in saying that there's just no way that any of the administration's lawyers honestly believe that those arguments are likely to prevail in court. They just aren't. To say that these arguments are longshots is to be charitable. So the question we should all be asking is this: what is the Bush administration's long term strategy here? They may be confident that they can spin this to their advantage in the short term, but winning an argument in the court of public opinion is very different that winning in actual court. They have to know that, sooner or later, they're likely to be rebuked by the judiciary. The administration can, of course, try to delay this day of reckoning as long as possible by challenging the standing of any would-be litigants and doing its best to intimidate the judiciary, but eventually the DoJ is going to have to defend the legality of this spying program in court, and that's not likely to turn out well for them.

To put it another way, the White House appears to be betting aggressively despite having a very weak hand and knowing that, sooner or later, they're going to have to show their cards. So the question is why. Why double down on a bad hand? Why bluff so aggressively? The exposure of this program has obviously put the administration in a tough position politically. But given the weakness of its legal position, you would expect the administration to be making some attempt to mitigate the long term fallout of this scandal, perhaps by attempting to moot the issue by seeking congressional authorization for the program. Sure, the administration would take some lumps in the short term by implicitly admitting that it overstepped its authority, but better that than a stinging judicial rebuke down the road.

That is, unless it's the short term fallout that you're the most worried about. The National Journal has a fascinating new article that might shed some light on the White House's approach to the NSA issue. The article discusses what would happen if the Democrats managed to win back one or both chambers of Congress in November:

What is obvious is that a Democratic takeover
-- of the House, Senate, or both -- would turn
Washington upside down. Suddenly, oversight
would be back in vogue, as Bush administration
officials would face what one senior White House
aide conceded would be "two years of
investigations" by majority Democrats on
Capitol Hill. Battle-scarred Democratic
stalwarts like Conyers, the longtime ranking
member on the House Judiciary Committee,
crave the opportunity to pursue an aggressive
agenda and finally hold President Bush's feet to
the fire. . . .

Expanding on the Conyers gambit, Paul
Weyrich, a veteran conservative leader and
the chairman of the Free Congress Foundation,
went even further. "If you have a [Democratic]
takeover in the House, Bush will be impeached,"
Weyrich bluntly predicted in an interview.

In what could become the White House's worst
nightmare, Democratic committee chairmen
undoubtedly would launch investigations into
everything from prewar intelligence,
Plamegate, Hurricane Katrina, Halliburton, the
"Plan B" emergency contraceptive, and
homeland-security failings. "We will
aggressively use the committee system to do
what we're supposed to be doing," said Sen.
Byron Dorgan, D-N.D., chairman of the
Senate Democratic Policy Committee.

The frustration of Congressional Democrats is certainly understandable.

[Henry] Waxman's staff recently issued a
report pointing out that congressional
oversight committees have issued no
subpoenas to the Bush White House. Under
President Clinton, "there wasn't an
allegation too small for them to hold
hearings on or to issue subpoenas for,"
Waxman charged. "Now there's no scandal
too big enough for them to ignore."

If Democrats win control of the House or
Senate, they are ready to spend the last two
years of Bush's term probing everything and
anything. To that end, Obey suggests that
Democrats would have to consider lengthening
the legislative workweek -- which in the House
typically runs from Tuesday afternoon through
Thursday -- so "the Congress has time to
conduct decent oversight."

The article ends with the following:

[Rep. Bart] Stupak warned that things would
change dramatically with Democrats in the
driver's seat. "The majority is protecting the
administration," he said. "It would be a lot
different if the Democrats were in charge."
Likewise, [Rep. Diana] DeGette predicted,
"It's been shocking that our oversight capacity
has dwindled.... The change would be a huge
problem for Bush."

Those words should be music to the ears of
Democrats -- and should scare the life out of
Republicans -- as they prepare for the
high-stakes elections this November.

I'm sure it does scare the life out of them. The only thing keeping the collection of simmering Bush administration scandals from exploding is the opposition party's lack of subpoena power. That's got to be the White House's worst nightmare. I suspect that the White House's only concern at this point is keeping the Democrats from retaking either branch of Congress. They are trying to run out the clock, to postpone their day of reckoning--if it has to come--until safely after the November elections. That's why they're bluffing so aggressively at the moment and pretending to be confident that their legal position will ultimately be vindicated. They know that most Americans are not constitutional lawyers, and lack the expertise to evaluate the merits of their various legal defenses. They know that if they pound the table hard enough, they may well be able to convince at least half of the public that they are right. And they know that there's very little chance that the courts will weight in on this issue prior to the November elections.

If the Republicans manage to hold on to both the House and Senate, I wouldn't be surprised if shortly thereafter the White House begins to strike a more conciliatory tone and does whatever it can to moot the legal issues presented by the NSA program (much like they are currently trying to do with the Padilla case). If the Democrats can pull off a miracle, however, look out, because things will get ugly fast.