Bush Apologist of the Week: Andrew McCarthy

I've decided to dedicate a weekly award to the people who, for reasons I cannot possibly fathom, have decided to sacrifice their intellectual honesty and professional integrity in an efffort to explain away George W. Bush's various malfeasances. This award isn't for the mindless Bushbots of the world; Ken Mehlman and Hugh Hewitt need not apply. No, in order to win this award you have to have had some modicum of respectability to begin with.

This week's winner is Andrew C. McCarthy--a regular contributor to the National Review--who was, in a past life, a respected federal prosecutor in the prestigious Southern District of New York (the same office where James Comey and Patrick Fitzgerald made names for themselves). McCarthy is an intelligent, highly-educated attorney who, through first hand experience, has developed an intimate familiarity with federal intelligence laws such as FISA.

On November 13, 2003, McCarthy had the following to say about FISA in an article he wrote for the National Review:

While essential, the alternative of wiretapping
aimed at intelligence gathering was in a state of
some disrepute in the post-Watergate era. Thus,
in 1978, Congress enacted the Foreign
Intelligence Surveillance Act (FISA) to clarify
the legitimate parameters of such
eavesdropping. FISA permits the government
to bring information - often classified - to a
special federal FISA court, which may then
authorize wiretaps for counterintelligence
purposes, provided there is probable cause that
the target is an agent of a foreign power. (There
is a respectable separation-of-powers argument
to be made that Congress had no business giving
federal courts a check on the executive branch's
conduct of foreign counterintelligence, but the
after-clap of the Nixon excesses was no time to
make it, and at this point, after a quarter
century, FISA is now settled law.)

Although I think McCarthy greatly overstates the "respectability" of the separation-of-powers argument to which he refers, he's at least within the realm of legitimate disagreement here. And his statement that "FISA is now settled law" summed up prettty well the consensus view of nearly every attorney in the country who had even a passing familiarity with these issues. That is until a few months ago.

On January 23, 2006, McCarthy again wrote about FISA on the pages of the National Review. Interestingly, however, his legal opinion seemed to have changed:

Congress had placed itself above the law by
ignoring the Constitution's separation of powers.
By attempting through legislation to dilute the
executive's constitutional power. Congress did so
again with the Foreign Intelligence Surveillance
Act, the 1978 statute which sought to make
judicial approval, on a legal standard of probable
cause, a prerequisite to national-security
eavesdropping (and, now, searches). FISA may
not be unconstitutional in all its particulars
(although it may be - and it certainly needs
overhauling if it is to avoid laughingstock
status, pitted against 21st-century enemies
versed in 21st-century technology). But to
the extent FISA limits the power of the
commander-in-chief to conduct warfare, to
the extent it would transfer to judges the
decision whether an essential incident of
warfare may be used, it is no more
constitutional - or rational - than if it had
purported to put the courts in charge of
military target selection, or other
battlefield judgments.

What on earth could have happened between November 2003 and January 2006? In the meantime, the argument that FISA is unconstitutional went from merely "respectable" to obvious and unquestionable. Rather than being a natural response to executive excesses, FISA is now the equivalent of putting the courts in charge of military target selection. And rather than being settled law, FISA "needs overhauling if it is to avoid laughingstock status, pitted against 21st-century enemies versed in 21st-century technology."

This final point is particularly ironic given the central thesis of McCarthy's November 2003 article was that the Patriot Act, by amending FISA, "usher[ed] several long-established investigative techniques into the era of 21st-century technology, bringing them to bear on terrorism." Indeed, McCarthy actually chided defense lawyers for "looking to meddle with something that works - here, FISA." I suppose when he wrote that FISA "works," he really meant that it "needs overhauling if it is to avoid laughingstock status."

It would appear that McCarthy's legal conclusions depend heavily on how the analysis affects George W. Bush's political fortunes at any given moment. For this shameless display of cognitive dissonance, I hereby proclaim Andrew McCarthy to be the Bush apologist of the week.