Who Needs the Rule of Law When You've Got Lanny Davis?

On Thursday, the AP reported that the Bush Administration has finally briefed the Privacy and Civil Liberties Oversight Board on the NSA surveillance program. The board, which was created by the Republican Congress and whose members were appointed by Bush himself, has been requesting information about the NSA program for some time and only now, as the Administration is making a last ditch effort to secure legislation legalizing the program, has the Administration agreed to brief its own hand-picked committee.

But what right wing bloggers have latched onto are the quotes in the story from the board members, including the lone Democrat on the board, Lanny Davis (yes, that Lanny Davis), who praise the extent to which the Bush Administration has gone to safeguard civil liberties.

Ed Morrissey and Rick Moran both seize on these quotes as somehow proving that all the concerns people have raised about the NSA program are nonsense. Here's Moran:

I have spent much of the last two years on this site railing against the hysterical, exaggerated, and ultimately dishonest charges made by people like Glenn Greenwald and others that the Bush Administration was tearing apart the Constitution and trying to set up some kind of a dictatorship.

The cornerstone of their bilious rantings has always been that the Administration's NSA intercept program was, on its face, illegal. In fact, the NSA program has been cited as reason number one to impeach the President and no amount of reasoning by those of us who cautioned against jumping to conclusions about a program that we knew so little about deflected these despicable jackanapes from wailing about our "lost freedoms" and comparing Bush to Hitler.

Well pardon my French, but the only thing I have to say to the gaggle of goofs who have spent much of the last two years in formulating some of the most vile, calumnious, and over the top charges regarding the Administration's cavalier attitude toward our civil liberties is -- BITE ME:

Nice. Captian Ed echoes Moran's sentiment, though in a slightly less juvenile way:

After all of the wailing and gnashing of teeth over the last year regarding the NSA's warrantless surveillance program on suspected terrorists abroad and their calls into the United States, the agency has now formally briefed the Privacy and Civil Liberties Board on the program. Members now claim that the government has worked hard to protect the privacy of American citizens. . . . The hysteria surrounding this program might finally start receding, as long as these remarks get some significant play.

After all this time, it still amazes me that so few on the Right seem capable of understanding what any of this is about. Yes, the NSA program raises concerns about civil liberties and the abuse thereof. But those concerns have always been of secondary importance. The primary issue has always been the fact that the program is ILLEGAL. Do Rick and Captian Ed really need this explained to them yet again. Do they really not understand how constitutional republics like our own are supposed to operate? Is the rule of law really such a difficult concept to internalize? Good grief.

Let me see if I can explain this in simple terms. In a system that operates according to the rule of law, what matters is what the law says, not what Lanny Davis or the other members of some meaningless ad hoc council think. The fundamental issue here is not what sort of privacy protections the NSA program does or does not provide; the problem is that the NSA program does not comply with the law.

FISA, which was passed by Congress and signed into law by the president, requires that the government seek warrants (either prospectively or retroactively) from a specialized court when conducting surveillance of U.S. citizens. This prohibition is categorical, and the Bush administration has no legal justification for disregarding it, particularly in light of Hamdan, which was precisely on point. This is a BIG DEAL. A constitutional system of government cannot tolerate a chief executive who operates outside of the law, even if, in doing so, he implements policies that Lanny Davis thinks are swell. There is no 'Lanny Davis exception' to the rule of law.

From the moment this controversy first erupted, right wing pundits and bloggers have been acting as if the only thing that matters is whether the NSA program is good policy (which they're just so sure it is). But that's not what this is about. This controversy is about an administration that thinks it can just make its own law instead of following the ones on the books. It's about an administration that has bypassed our constitutional system of checks and balances. The NSA program may well operate under a number of procedures and protocols that help protect our privacy rights. But those procedures and protocols are completely ad hoc and non-statutory. Indeed they directly contradict the statutory scheme that our democratically-elected representatives have put in place and refined over the years. It is not the president's place to rewrite the law unilaterally.

Our lawmakers established a system of judicial oversight for government surveillance activity precisely so that we would not have to rely on the word of the executive branch (or of some ad hoc Privacy Board appointed by the executive branch). That's the beauty of constitutional democracy, of checks and balances. Our founders chose this system of government because they didn't want to live in a country where you were forced to take the Leader's word that he wasn't abusing his powers or violating people's rights. They specifically created a system where even the most powerful person in the country, the president, was not above the law.

But maybe I'm being old-fashioned. That system is a little outdated. Maybe we should just settle for a system where the President decides what the law is on his own. After all, as long as the President's policies are reviewed and blessed by a hand-picked committee five years after being implemented, what's there to worry about? Who needs checks and balances when you've got Lanny Davis?