The President's "Good Faith" Defense

(Cross-posted at Unclaimed Territory)

In its article covering Friday's censure hearing, the New York Times reports:

Several Republicans argued that whatever
the legal status of the spying program, it did
not deserve punishment because, unlike
Nixon, Mr. Bush had acted in good faith.

"This is apples and oranges," Senator Lindsey
Graham, Republican of South Carolina, told
Mr. Dean. "Anybody who believes that Richard
Nixon was relying on some inherent-authority
argument is recreating history."

Oh really. Here's a passage from the same 1969 TIME Magazine article Glenn highlighted yesterday:

If anything, the Nixon Administration has been
less than apologetic about the practice. Last
month, in a memorandum filed during the
Chicago trial of eight men charged with
conspiring to incite acts of violence during the
Democratic National Convention, the Justice
Department claimed the inherent right to
bug or wiretap-without court orders-any time
it felt that the "national security" was in
jeopardy. As authority for this broad power,
the Government cited the President's oath to
"preserve, protect and defend the
Constitution" from domestic subversion as
well as foreign enemies. Contending that every
President since Franklin Roosevelt had
permitted such wiretaps, the Government
went on to imply that they were even more
important now because of the growing violence
and rioting in the nation's cities and on its
campuses.

Not only did Nixon rely on an inherent authority argument, but he had an infinitely stronger case because Congress had not yet passed FISA. Nice try, though, Senator Graham.

I also want to take a moment to address the emerging "good faith" defense of the President, which is being advanced by Republicans like Senators Graham and Specter who are clearly skeptical of the NSA program's legality. The argument seems to be that while Bush may have acted illegally, he did so based on a good faith belief that his actions were legal, and therefore he does not deserve harsh criticism or Congressional sanction.

I can see why Republicans like Graham and Specter have gravitated toward this argument. It allows them to express their genuine skepticism about the legality of the program without having to criticize the President for authorizing it.

But there's a major problem. Everything the administration has done for the past four and a half years indicates that it does NOT have a good faith believe in its own legal arguments. If Bush administration officials had any confidence whatsoever in their legal theories, they could at any point seek judicial blessing of the NSA program. All they would have to do is try to introduce evidence obtained via warrantless surveillance in court, either in a criminal prosecution or in an application for a FISA warrant. Either move would force the court to address the legality of the NSA program. In the latter context, the administration would have the benefit of being able to present its case ex parte and in secret.

But they are unwilling to do this, and for one simple reason: they are pretty certain they will lose. This paragraph from a U.S. News & World Report story last week is particularly revealing:

White House lawyers, in particular, Vice
President Cheney's counsel David Addington
(who is now Cheney's chief of staff), pressed
Mueller to use information from the NSA
program in court cases, without disclosing the
origin of the information, and told Mueller to
be prepared to drop prosecutions if judges
demanded to know the sourcing, according to
several government officials.

So they were willing to deceive judges and to drop entire prosecutions rather than test their legal theories in court. If that's not good faith, what is? The article goes on to make the obvious point:

[John] Martin, who has handled more
intelligence-oriented criminal cases than anyone
else at the Justice Department, puts the issue
in stark terms: "The failure to allow it
[information obtained from warrantless
surveillance] to be used in court is a concession
that it is an illegal surveillance."

But that's not the only evidence that the administration doesn't have much confidence in its own legal theories. The administration has worked feverishly to scuttle any further investigation into its activities and to challenge the standing of litigants (like the ACLU) who have sought to have the legality of the NSA program adjudicated in court.

And, perhaps most glaringly of all, there's the fact that the administration's primary legal argument was apparently conceived years after the program was first authorized. It's pretty hard to have a good faith belief in the merits of an argument you haven't even thought up yet. The administration is so confident in the merits of its legal theories that it won't even release the relevant OLC legal opinions, despite repeated requests.

No, despite what "several Republicans" argue, this administration does not and has never had a good faith belief that its legal theories will prevail in court.

But, you may protest, perhaps Bush did have a good faith belief that his actions would help prevent terrorism, even if he knew they were probably illegal. Isn't this a mitigating factor? Sure, if it's true. And for all I know it is. But there are two points we must not lose sight of.

First, because this surveillance is taking place in secret and without judicial review, we have no way of knowing who is actually being spied upon and why. We must simply take the administration's word. But history has shown that a president's word isn't worth a whole lot in this area. Surveillance authority was abused not only by the Nixon administration, but by his Democratic predecessors. The whole point of FISA was so we wouldn't have to take the president's word anymore. Even if you trust Bush to use this power only on terrorists and never on anyone else, can you really say the same about all future presidents?

Second, even if Bush's motives are as pure as the driven snow, it doesn't justify knowingly violating the law, at least outside of very extreme and short-term emergency scenarios. The viability of our system of constitutional government depends on the willingness of our leaders, particularly the president, to take seriously the concepts of separation of powers and checks and balances embodied in our Constitution. Subverting these concepts is dangerous. As John Dean said at Friday's hearing:

I must add that never before have I felt the
slightest reason to fear our government. Nor
do I frighten easily. But I do fear the
Bush/Cheney government (and the
precedents they are creating) because this
administration is caught up in the rectitude
of its own self-righteousness, and for all
practical purposes this presidency has
remained largely unchecked by its
constitutional coequals.

Amen to that.