Pruning Shears

I ususally post “This Week” on Sunday evening but didn’t yesterday. It’s just as well since the first item below didn’t appear until this morning. Anyway I know at this point it’s really “Last Week In Tyranny”. If that’s a problem see the cashier for a full refund.

John Ashcroft has come down with an “unconstitutional ideas” variant of Tourette’s Syndrome and in a mean-spirited turn the New York Times has published one of his outbursts. Let’s fire some buckshot into the blind and see what we hit:

[W]hether to terminate the huge lawsuits that have been filed against the nation’s major telecommunications carriers accused of cooperating with classified counterterrorism programs is not [complex or difficult]. Whatever one feels about the underlying intelligence activities or the legal basis on which they were initially established, it would be unfair and contrary to the interests of the United States to allow litigation that tries to hold private telecommunications companies liable for them.

The “legal basis on which they were initially established” is apparently some opinions from the Office of Legal Counsel (OLC). Which is to say, no legal basis at all. This administration uses the OLC to grab power and see if they can get away from it. If they decide their memos override actual laws then the place to decide if they’re right is in court. Companies have legal departments that should be expected to advise a Post-It with the Presidential Seal on it isn’t an acceptable legal basis for breaking the law. How is that unfair?

Longstanding principles of law hold that an American corporation is entitled to rely on assurances of legality from officials responsible for government activities.

I’m not a lawyer so I don’t know what these “[l]ongstanding principles of law” are, but in general it’s a good idea not to uncritically accept the exhortations of someone asking you to do something that s/he has a vested interest in. You have people to run this stuff by (see above). You are expected to obey the law and if you don’t you should expect to be held accountable. And there are exceptions in the law for good faith; if you’re on the side of the angels you’ll be fine.

By what principle of justice should anyone face potentially ruinous liability for cooperating with intelligence activities that are authorized by the president and whose legality has been reviewed and approved by our most senior legal officials?

The principle of the rule of law. The President doesn’t decree laws and creative interpretations by his team doesn’t make it so. As for ruinous liability, that would be an appropriate punishment for massive lawbreaking. If a company goes belly up the demand will still be there and a (presumably) more law abiding company would step in to meet it. The market will sort it out.

Even more important than the inherent unfairness of requiring companies to second-guess executive-branch legal judgments are the acute dangers to which it would expose the country. One of our nation’s most important comparative advantages over our adversaries is the creativity and robustness of the private sector. To cut ourselves off from that advantage would amount to a form of unilateral disarmament.

No one ever asked for us to foreswear this advantage, just to use it under the law. We’ve seen the false choice argument too much these last few years.

For domestic purposes, proper accountability already exists — through the people’s elected representatives on the House and Senate Intelligence Committees.

By that logic we could do away with the entire judicial branch. The people’s elected representatives will ensure accountability - why have a court case?

John Ashcroft has served us very poorly.

Senator John D. Rockefeller IV also appears to have trouble understanding the concept of “law”:

Within weeks of the 2001 attacks, communications companies received written requests and directives for assistance with intelligence activities authorized by the president. These companies were assured that their cooperation was not only legal but also necessary because of their unique technical capabilities. They were also told it was their patriotic duty to help protect the country after the devastating attacks on our homeland.

The president had no right to authorize such a thing. The FISA court exists precisely for the kind of surveillance he claimed to need. If that was a problem he should have urged that it be changed, but in any event he should have operated at all times under the law - no matter how much it chafed. And that last sentence shows the Senator taking the last refuge of the scoundrel.

Finally, if you think Democrats aren’t incompetent as much as salivating over all the new goodies to play with if the hoped-for big gains happen next year…you may be right.

Republicans are not convinced Speaker Nancy Pelosi (D-Calif.) and Democratic leaders will force a legal showdown over the twin issues of executive privilege and whether top aides to President Bush can be subpoenaed to testify before Congress, arguing that a Democrat-controlled Congress, and future Democratic presidents, would have too much to lose from such a confrontation.

It’s enough to make one a cynic.