Lindsay Graham: Duplicitous Shill. (But you knew that.)

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.

Comments

[emptypockets]

...whereas there's real reason to believe the NSA program directly impacts the national security. And Graham is right.

I thought you were going to say, "The NSA program does directly impact national security. It obliterates it.

[Steve]

There never is any controlling legal authority, is there?

[Fred in Vermont]

I suppose the difference between the two situation is that in the one case it was clear that the President was dealing with people who were operating in a political area even though it could be claimed to involve national secutiry too.

In the case of the NSA wiretaps the President claims that it is for national security purposes and only involves potential terrorists and since the program is top secret there is no way to argue with him.

If Nixon were smart he would have had some special unit do all of this and make their work secret. But that would not have worked unless he had controlled both houses of congress like this one does.

The problem with saying that a program that is totally secret does not serve proper national security purposes is that all you have to persent are your suspicions or your fear that such a sysem could be abused.

[Kagro X]

That's just it, Fred. It works both ways, which is of course the point of written law.

The question of the legality of the NSA surveillance program, since the question is theoretical, doesn't depend on the facts of individual cases of spying, but rather on there being a process by which one might rationally differentiate cases given some set of facts.

Gonzales' legal theory renders Graham's parsing inapposite. All spying is legal, because everything the president does is legal, by definition. Insisting that Watergate was worse because the targeting couldn't be justified ignores the fact that Gonzales' theory requires no justification in the first place.

In order for Graham to have a coherent legal theory, the program has to be illegal on its face. Otherwise, his distinction between it and Watergate cannot be made, because they both come under the same level of proposed scrutiny: none.

[kim]

Yup, he's right up there with McCain, Roberts, Specter,... well all of them really.

[Mel]

Why are the absent Dems getting a free ride? How can the country rally around no-shows? I realize that they are "safe" in their seats and thus not in need of my $, but they are making it hard to believe the Democratic party can fix what's been breaking these last 5+ years. America might be the singular military giant--but that's not the case economically. Our country will be harder to govern in the future, and these cowards will shy away from hard decisions.

The longer the left waits to form a new party, the deeper our country will sink. Those that chose to turn their backs on Russ and Pat can never claim to be leaders. Those that don't criticize them are their equal--power whores.

Eugene McCarthy had convictions and valor--Teddy, you're no Gene.

[Fred in Vermont]

"the legality of the NSA surveillance program
. . . [depends] on there being a process by
which one might rationally differentiate cases
given some set of facts."

That was solved by inventing the FISA system. The standard was to be good old fasioned probable cause, in SPECIFIC cases, and the finder of that fact was to be a secret but otherwise regular article 3 court. If you don't have a court involved and just have a few members of congress getting generalized briefings about a "program" that they can't share with others then there is no way the process can be called legal.

[Steve]

Not to pile on the Dems, since the fact is that this is the party we're stuck with, but David Corn had an interesting anecdote the other day:

[General Wesley Clark] said that he is often asked to speak to Senate Democrats on security issues and frequently no more than six or so show up. For the unveiling of the Democrats' new security plan, most of the Democratic Senators bothered to come. That's progress, he suggested.

[Kagro X]

Yet Senator Graham pretends that legality can be established not only in the complete absence of any kind of system, but without reference to the necessity of a system at all. Essentially, it's his claim that the program is legal simply because it's not Watergate.

[Steve]

The point is not just that there's no controlling legal authority to rule on whether the program is legal or not. The point is that the program itself does away with the controlling legal authority. The FISA court, the very body set up to determine when a wiretap is legal, is being bypassed by the program, and then people act shocked when we don't know whether the program is legal or not.

[Kagro X]

Yes, I agree.

What I'm saying is that Lindsay Graham's objection to John Dean's point makes no sense. Graham wants to differentiate between Watergate and the NSA spying, but on what basis?

Graham says it was clearly not "national security" in the case of Watergate, but clearly is in the case of the NSA surveillance.

I say that without judicial oversight or some other objective standard of review, it cannot logically make any difference what the facts were, or what anyone thinks is or isn't in the interest of national security. If the president's theory of unchecked executive power has any validity, then Graham can't possibly hope to distinguish between one and the other. If there's no objective standard of review, it's all "fair game," and Graham has no business objecting to Dean's comparison.

[emptypockets]

Lindsey Graham:

"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."

So I think the legal difference in his mind between Watergate and Wiretapping is that, basically, Nixon didn't say "Yes I did ordered the break-in and I'm allowed to because I'm the President." You have to say the magic words.

[Kagro X]

But he did say them. "It's not illegal if the president does it."

[emptypockets]

whoops, good point - shows what I know. thanks for the lesson

[Brian Boru]

Graham claims the NSA spying deals with national security because the president says so; I'm old enough to remember the aphorism of another republican: Trust but verify.

[Kagro X]

That's exactly it, Brian. Because there's no review process -- and there's no review process because the administration's theory is that there cannot be one, else the president's "inherent powers" are unconstitutionally constrained -- there can be no investigation or determination of whether the president's claims have any validity.

That's why the "good faith" claim is inapposite. It couldn't matter less what the president's motivations are, except to those who want to make themselves feel better about having abdicated their responsibilities of oversight. They'll feel good if there's at least a "good faith" belief that there's a national security interest at stake. And they'll feel bad if they find out there's not.

But Graham, unless he repudiates the administration's theory, has no opportunity to gauge the "faith" with which the president approaches any given decision. So if it never enters into the equation (because there is no equation), what could it matter whether there's "good faith" or not?