by Kagro X
I said I wasn't gonna watch the Senate Judiciary Committee's censure hearings, but I flipped by and caught Sen. Lindsay Graham's exchange with John Dean, and just had to point something out.
The essense of the exhcange was that Graham believed Dean's comparison of the NSA wiretapping to Watergate was inapt -- that Watergate involved a burglary, an outright criminal act, whereas the NSA surveillance involved a "legitimate" dispute over the scope of executive authority.
Dean, of course, pointed out that both the break-in at Ellsberg's psychiatrist's office and the coverup of the Watergate break-in were justified (in Nixon's mind) as being necessary for "national security" purposes.
Graham countered that it was ridiculous for Nixon to have said so, because everyone knows there's no legitimate national security interest in those actions, whereas there's real reason to believe the NSA program directly impacts the national security.
And Graham is right.
Unfortunately, Graham is only right about this: There is a "genuine dispute" over the legality of what the NSA is doing. The only problem is that the dispute is "genuine" only in the sense that it exists. And while I have no doubt, as Graham insists is the case, that "administration" officials do genuinely believe the bogus and baseless argument they're making, that's not enough to make the dispute "genuine." (Just as the fact that his fake colloquy in the Congressional Record actually exists in print is not enough to make the claim that it's part of the "legislative history" of the Detainee Treatement Act genuine, as Graham just argued to the Supreme Court in his amicus brief.)
The larger problem, however, is that Mr. "Nation of laws" hangs his hat on a "factual" distinction that impacts the underlying legal theory not a whit. The reason the Bush "administration's" NSA surveillance is so troubling is that there's nothing of substance standing between the claims Nixon made (but Graham rejects) about what constitutes a legitimate issue of "national security," and the claims the Bush junta makes about what constitutes legitimate issues of "national security." A "nation of laws" would make a distincition at law between the two, which the bat-shit insane theories of the "unitary executive" and the "inherent authority" of the president fail to do, and indeed studiously avoid doing, arguing instead that the president is unconstrained and unconstrainable when acting in the "national security" arena.
It boils down to this, Lindsay: Who says when a "national security" claim is preposterous, when it's beyond question, and when there's a "legitimate dispute" about it?
The answer is: there is no answer.
And if there is no answer, there is no law. Just different collections of "facts." And that don't cut it.