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Another Account of White House Wars Over Surveillance:

The Washington Post has an excerpt from a forthcoming book on Dick Cheney providing additional details on the internal dissension within the Bush Administration over the legality of its terrorist surveillance programs. Interesting stuff! And, as with other accounts, David Addington does not come off too well.

cboldt (mail):
Good reading. Thanks for the pointer. I LOL'd at this Comey/Addington exchange:
.

"The analysis is flawed, in fact facially flawed," Comey said. "No lawyer reading that could reasonably rely on it."
"Well, I'm a lawyer and I did," Addington said, glaring at Comey.
"No good lawyer," Comey said.
9.14.2008 2:42pm
fullerene:
Walked right into that one.
9.14.2008 2:48pm
badger (mail):
Fullerene: A good lawyer would have seen it coming.
9.14.2008 3:03pm
Oren:

In its first 18 months, the only other lawyer who reviewed the program was John Yoo.

Wow. Talk about a guaranteed way to get the answer you want -- don't let anyone else read the question!
9.14.2008 3:23pm
Oren:

"I will accept for purposes of discussion that it is as valuable as you say it is," Comey said. "That only makes this more painful. It doesn't change the analysis. If I can't find a lawful basis for something, your telling me you really, really need to do it doesn't help me."

Taking out your anger on the DOJ for Congressional failure to pass a sensible intelligence bill . . . real classy.
9.14.2008 3:30pm
elim:
I disagree on Addington sounding bad, just as I disagree that he sounded bad when a Representative of the United States all but invited Al Quadea on him during testimony. he seems to be one of the few actually focused on the task of protecting America versus winning an academic debate.
9.14.2008 3:47pm
Oren:
elim, protecting the US can be accomplished better by asking Congress for the tools that you need, not violating the law. Does anyone seriously doubt that the 108th/109th Congress wouldn't have amended the law to bring these programs in compliance?
9.14.2008 4:06pm
badger (mail):
elim:

Addington, Comey and Goldsmith are not employed by the US government as "academics" and their debate is not an academic one. Their job is to honor their oaths to uphold the US Constitution and laws, which includes conducting honest analysis of what those laws do and do not allow. The freedom from prosecution of thousands of government employees often rests on the trustworthiness of that analysis.

So, no, people in those positions cannot just "focus" on "protecting America" from terrorist attack. That's what the FBI and CIA is for (in addition to those agencies own obligations under US law). If a badly-written law is interfereing with an otherwise unobjectionable method for deterring terrorist attacks, Congress and the President can modify that law.
9.14.2008 4:07pm
OrinKerr:
Elim,

Is the Rule of Law just "an academic debate," in your view?
9.14.2008 4:17pm
frankcross (mail):
elim, your post is quite an indictment of the Bush Administration, implying the the NSA, the Attorney General, and other Administration officials could not be trusted to focus on the task of anti-terrorism.
9.14.2008 4:51pm
Curt Fischer:
The WaPo piece makes it clear that Cheney (and his office) had virtually total control over the wiretapping program.

"...what is it exactly that the VP does every day?"

It certainly casts Palin's quote in a new light, doesn't it?
9.14.2008 5:21pm
Johnny Canuck (mail):
How can people who believe in the rule of law support Bush/Cheney?

How can anyone who claims to be a fiscal conservative support a ticket that appears eager (although they hate war) to further overextend US military capability whether by encouraging Israel to bomb Iran, or funding Georgia or encouraging confrontation with Russia?

Unless, of course, the plan is to follow Alaska's budget balancing mechanism, abolish income tax and tax the oil industry's "excess profits"?
9.14.2008 5:38pm
FlimFlamSam:
Prof. Kerr,

I'm wondering what "Rule of Law" principles are implicated here. As I understand the law, "warrantless domestic surveillance" is not illegal, it's just that evidence gathered thereby is inadmissible in a criminal prosecution.
9.14.2008 5:40pm
FlimFlamSam:
If I can revise and extend my remarks a bit, I guess my point is this. About a year ago, a county police department in my state started a road checkpoint program, supposedly license checks and DUI checks, etc. They also caught some people whose crimes had nothing to do with invalid registrations, licenses, etc., i.e. "car crimes."

The courts eventually threw out a lot of the convictions, finding that the checkpoints were "general crime control" checkpoints and not simple license checkpoints, and were therefore violative of the Fourth Amendment. Evidence was suppressed, etc.

Nobody wrote any books about it. There were no front page news articles about evaporating civil liberties. The Washington Post did no articles.

The Rule of Law, according to the Supreme Court, is the Exclusionary Rule (with the occasional civil remedy, 42 U.S.C. Section 1983, Bivens, etc.) if an executive branch policing program goes too far. The Bush Administration made a decision to go forward with the program believing that the benefits (stopping another 9/11) outweighed the risks (exclusion and Bivens actions). I'm not sure how that displays any sort of contempt for the Rule of Law, and if it does, then every policeman or police department who has ever had any evidence suppressed is an Enemy of Liberty just like the Evil Dick Cheney.

At least that's my view.
9.14.2008 5:59pm
Matt Tievsky (mail):
FlimFlamSam,

Violating the Fourth Amendment is, in itself, illegal. Suppressing evidence under the exclusionary rule is an (imperfect) remedy, but it does not undo the violation of the law.
9.14.2008 6:09pm
Matt Tievsky (mail):
Sorry, let me clarify that post. What I meant to say is, conducting an "unreasonable" search is in itself a violation of the Fourth Amendment and therefore illegal, whether or not the executive uses the fruits of that search in a criminal prosecution. Thus, the rule of law demands that the executive simply not engage in unreasonable searches, regardless of how the executive uses what it finds.
9.14.2008 6:18pm
Anderson (mail):
FlimFlam, I am not up on FISA, but I had thought that violations of it carried some penalty.

Anyone happen to know?
9.14.2008 6:20pm
Perry:
This is assuming that people 'found' guilty won't be(haven't been) declared enemy combantants and detained without any access to our 'rule of law'..
9.14.2008 6:23pm
FlimFlamSam:
Matt Tievsky,

So what's the difference between the Bush White House conducting domestic wiretapping not authorized by FISA and an overreaching roadblock in Cuyahoga County, Ohio? Why the flipping out over the former, but little concern over the latter?
9.14.2008 6:28pm
Matt Tievsky (mail):
Because it's the White House, the most powerful government institution there is.
9.14.2008 6:31pm
Mark Field (mail):

FlimFlam, I am not up on FISA, but I had thought that violations of it carried some penalty.

Anyone happen to know?


Under 18 USC 2511 (4)(a), violation is a felony punishable by up to 5 years in prison. 50 USC 1809 provides the same penalty, plus a fine of $10,000 per violation.
9.14.2008 6:36pm
Mark Field (mail):

So what's the difference between the Bush White House conducting domestic wiretapping not authorized by FISA and an overreaching roadblock in Cuyahoga County, Ohio? Why the flipping out over the former, but little concern over the latter?


There are two significant problems with the FISA violations. One is the willingness of the Administration to violate the law rather than change it. In fact, while the Administration was committing multiple felonies, it was telling Congress there was no need to modify FISA. For example, on July 31, 2002, James A. Baker, the Justice Department’s Counsel for Intelligence Policy, testified before Congress on a bill that would have amended FISA to change the standard for certain warrants under FISA from “probable cause” to “reasonable suspicion”. This change would have permitted some, but not all, of the illegal surveillance. He told Congress that the Bush Administration was not prepared to support the change because it “might not pass constitutional muster”. Mr. Baker warned that if the change were not constitutional, it might cause problems with later prosecutions.

The other problem is that interception of communications infringes freedom of speech. Roadblocks only interfere with the privilege of driving.
9.14.2008 6:44pm
Mark Field (mail):
BTW -- If anyone cares, I won't be able to respond to any comments until late tomorrow. You'll have to play unsupervised until then.
9.14.2008 6:49pm
FlimFlamSam:
Mark Field,

Roadblock checkpoints are bodily seizures under the Fourth Amendment.
9.14.2008 7:22pm
Oren:

As I understand the law, "warrantless domestic surveillance" is not illegal

Reread FISA a few times. Or, if you prefer the opinion of our resident experts, search that archives.
9.14.2008 7:33pm
FlimFlamSam:
Oren,

So why can the President not authorize warrantless domestic surveillance as Commander-in-Chief of the military?
9.14.2008 7:41pm
wm13:
"And, as with other accounts, David Addington does not come off too well."

From this I infer that Addington keeps his own counsel (and his client's confidences) and does not spin self-justifying narratives to reporters.

More generally, I think this sort of current events reportage is worthless--assuming you are interested in the truth, not partisan points--because obviously the people who talk to the reporter give a narrative that justifies their actions, and the reporter rewards his sources by painting them in a flattering light. So what you read in the Washington Post, or any other journalistic source, should be read as if it were a pleading to which you don't have the response, i.e., you shouldn't make any decisions until you hear from the other side.
9.14.2008 8:29pm
Philistine (mail):
<blockquote>
<i>So why can the President not authorize warrantless domestic surveillance as Commander-in-Chief of the military?</i>
</blockquote>

(For the same reason he can't authorize domestic murder--it's against the law. Mark Field gave you the specific statutory reference, above.
9.14.2008 8:31pm
EH (mail):
wm13: And since language is imprecise, we can't trust anything we know unless we get inside Addington's head. As long as he doesn't talk, he might be right!
9.14.2008 8:52pm
OrinKerr:
As I understand the law, "warrantless domestic surveillance" is not illegal, it's just that evidence gathered thereby is inadmissible in a criminal prosecution.


No, that's incorrect.

From this I infer that Addington keeps his own counsel (and his client's confidences) and does not spin self-justifying narratives to reporters.


WM13, what do you think Addington would say if he would spin his self-justifying narrative?
9.14.2008 9:05pm
FlimFlamSam:
Philistine,

Do you agree that there are some laws that Congress cannot constitutionally pass because they unconstitutionally invade the presidential commander-in-chief authority?
9.14.2008 9:12pm
Zabodaih (mail):
wm13> Yes, what we should believe instead are official governmental reports, in which the authors have no incentive to embellish or mislead in order to protect or improve their own position in the bureaucracy.
9.14.2008 9:13pm
FlimFlamSam:

WM13, what do you think Addington would say if he would spin his self-justifying narrative?


It wasn't addressed to me, but I'll chime in anyway.

I think Addington would say something like this. The standard for what passes as a good faith legal argument is dramatically lower than it used to be. The fact that a large number of law professors and legal scholars say "That's wrong" does not make it so.

What percentage of law professors would have thought abortion was a constitutional right in 1890? What percentage of law professors would have thought seperate-but-equal would be struck down in 1920? What percentage of law professors would have thought that a police officer had to advise an arrestee of his criminal procedural rights prior to questioning in 1940? Legal creativity is at an all-time high, and the Bush Administration engaged in some legal creativity to do what they thought was best for the country.
9.14.2008 9:18pm
Philistine (mail):


Do you agree that there are some laws that Congress cannot constitutionally pass because they unconstitutionally invade the presidential commander-in-chief authority?



I suppose there could be. OTOH, I find Title III and FISA in general, as they effect military and intelligence matters, to fall squarely within Congress' power to make rules for the government and regulation of the land and naval Forces.
9.14.2008 9:19pm
wm13:
"WM13, what do you think Addington would say if he would spin his self-justifying narrative?"

Unfortunately, (i) I don't know much about FISA and the other relevant statutes and (ii) none of us knows much about the actual details of various NSA surveillance programs. So I'll pass. But I'm confident that, if Prof. Kerr or anyone else here (including me) were assigned to defend Mr. Addington in a moot court presentation, and given enough time to learn the area, we could mount a credible defense.

By the way, I by no means advocate either the epistemological nihilism nor the excessive trust in government with which some charge me above. I believe firmly that documentary research in government archives does reveal the truth, as much as any human enterprise can. But journalism is not the first rough draft of history any more than a court pleading is, because it isn't produced by disinterested people doing exhaustive research; it's produced by people giving distorted versions of the facts for ulterior purposes.
9.14.2008 9:39pm
elim:
is the rule of law an academic debate-quite often, yes. the premise of this post is that Addington comes across quite poorly-given that it isn't Addington that is doing the leaking, that is hardly a surprise. would I rather have an academic interested in winning a legal argument or a person actually interested in winning a war? I'll opt for the latter. no matter how well respected (ie. willing to leak after the fact but not willing to resign) those who come off looking good are, I'll take the one focused on getting a win. is winning a war an academic debate?
9.14.2008 10:30pm
Soronel Haetir (mail):
elim,

In this case I am much more worried about sacrificing the war in order to win a small battle. If the war is anything it is a war for liberty, not a battle against terror.
9.14.2008 11:00pm
SIG357:
Oren

protecting the US can be accomplished better by asking Congress for the tools that you need, not violating the law.

I love your casual assumption that the law was violated. Can you cite for me the court ruling to that effect? Or is this another case of a liberal conflating his own emotions with the law?
9.15.2008 12:20am
SIG357:
I find Title III and FISA in general, as they effect military and intelligence matters, to fall squarely within Congress' power to make rules for the government and regulation of the land and naval Forces.


That's peculiar, since they do not touch at all on the regulation of land and naval forces. So which power of Congress are they based on?
9.15.2008 12:24am
SIG357:
Violating the Fourth Amendment is, in itself, illegal.

There are some crack legal minds posting here, I can see.

The question is whether or not any wire-tapping programs violated the Fourth Amendment. (Or other applicable law.) It seems to be news to a great many people here that this question has not been answered in the affirmative. Or at all. But I'm sure that little detail won't stop people from running their mouths about "felonies".
9.15.2008 12:31am
Barry P. (mail):
The question is whether or not any wire-tapping programs violated the Fourth Amendment. (Or other applicable law.)

Well, all of Bush's Justice Department brass seemed to think it did, including that lily-livered liberal, John Ashcroft.
9.15.2008 2:43am
Jerry F:
"Well, all of Bush's Justice Department brass seemed to think it did, including that lily-livered liberal, John Ashcroft."

That's because all of Bush's Justice Department, including Ashcroft, apply the law as dictated by the current left-wing activist Supreme Court, not the law as dictated by the Constitution.
9.15.2008 2:52am
LM (mail):
Jerry F:

That's because all of Bush's Justice Department, including Ashcroft, apply the law as dictated by the current left-wing activist Supreme Court, not the law as dictated by the Constitution.

Correct me if I'm wrong but since it generally takes five at a time to act, I assume this means you think Stevens, Souter, RBG, Breyer and Kennedy are left-wing activist justices. Does it go beyond them? Do you consider any of the others left wing activist justices?
9.15.2008 4:06am
Milhouse (www):
If it comes down to a choice between winning a war or upholding the law, I think there can be no question that winning the war comes first, and if it means breaking the law then so much the worse for the law. As far as I'm concerned anyone who puts the law ahead of the nation's security, fiat justitia ruat caelum, is no patriot.

But that call was not the Acting Attorney General's to make, nor even the Vice President's. Comey's job was to give the best legal opinion he could, to advise the VP, and through him the President, what the law was. Whether the program was so important that it must be continued despite the law, was the President's call, not anybody else's. Assuming the WaPo report to be essentially factual, if I were in Comey's shoes I'd tell Cheney that this was the considered legal opinion of the best lawyers the Justice Dept had, but that if having heard this the President personally authorised the program anyway, I'd make sure that Justice would turn a blind eye. But the president could not order me to tell him something I did not believe to be true, that the program was legal when I believed it was not.
9.15.2008 4:20am
PC:
Do you consider any of the others left wing activist justices?


Any judge that disagrees with me is an activist. Any judge that agrees with me is fairly interpreting the law.
9.15.2008 4:21am
LM (mail):

Any judge that disagrees with me is an activist. Any judge that agrees with me is fairly interpreting the law.

That's the dictionary definition. I was looking for something more subjective.
9.15.2008 4:52am
Philistine (mail):

That's peculiar, since they do not touch at all on the regulation of land and naval forces


Then how do they touch on the President's status as "Commander in Chief of the Army and Navy of the United States"?
9.15.2008 8:37am
Oren:

Can you cite for me the court ruling to that effect? Or is this another case of a liberal conflating his own emotions with the law?

"I think that the Administration's published legal defense of the [TSP] program is weak." Noted 4A expert, Orin Kerr.
9.15.2008 8:45am
Oren:
I should add that OK didn't condemn the TSP on 4A grounds, but thought it probably violates (the old) FISA.
9.15.2008 8:47am
Oren:

That's peculiar, since they do not touch at all on the regulation of land and naval forces. So which power of Congress are they based on?

It's implied that "regulation of the land and naval forces" substantially includes regulation of all other military affairs. Either that, or you have to conclude that Congress has no power to fund the Air Force or satellite-based weaponry, since, under your reading, those don't fall in there either.
9.15.2008 8:49am
Oren:

I am one of those who believes that the NSA program is not authorized by the AUMF, that it violates FISA, that FISA is a constitutional exercise of congressional power, and that therefore the NSA program is both illegal and unconstitutional.
~Dale Carpenter


So, I think (as Orin's post suggested), the real foundation of this decision is FISA. If Congress prohibited this sort of eavesdropping via FISA, and didn't carve out an exception under the AUMF, then the program is indeed illegal (since I don't think the President's inherent power argument much works here, even as to violations of a statute). If FISA doesn't apply, though, then the program is permissible, because there's no First or Fourth Amendment violation here.
~EV

Was the secret NSA surveillance program legal? Was it constitutional? Did it violate federal statutory law? It turns out these are hard questions, but I wanted to try my best to answer them. My answer is pretty tentative, but here it goes: Although it hinges somewhat on technical details we don't know, it seems that the program was probably constitutional but probably violated the federal law known as the Foreign Intelligence Surveillance Act.


You don't even have to leave this blog to find plenty of reasoned analysis on the question. The fact that every thread about surveillance becomes a new thread on debating the original is incredibly frustrating.
9.15.2008 8:58am
FlimFlamSam:
Oren,

I don't know why you find it incredibly frustrating that some of us disagree with the legal opinions of the VCers. This isn't the Supreme Court deciding once and for all on something. Heck, even when the Supreme Court purports to do that, it doesn't end the debate.

What you have are people arguing about whether the President's inherent authority is unconstitutionally invaded by FISA restrictions. These are unsettled and complex issues. Both sides are well within the bounds of good faith legal argument.
9.15.2008 9:10am
XON:
The Commander-in-Chief is merely the person from whom legal orders flow as a matter of definition. That is the extent of his power. Congress holds ALL of the cards in defining what is or isn't a legal order. This is the fundamental mistake made by this administration, and the SC.

I'm frankly disgusted at the proliferation of monarchists around here that buy Addington's addled assertion that Commander-in-Chief somehow equals un-questionable power.

FISA says that it was a felony when the executive branch did what it did. The C-in-C cannot legally order something that Congress has prohibited. Several people should be in jail, and hopefully will be after January.
9.15.2008 9:11am
Sarcastro (www):
I often enjoy declaring a law is unconstitutional and then going on to break it at my leasure.
9.15.2008 9:45am
jukeboxgrad (mail):
milhouse:

But the president could not order me to tell him something I did not believe to be true, that the program was legal when I believed it was not.


Why not? If (as you claim) it's morally proper for POTUS to break the law in order to ostensibly protect the nation, why is it not proper for POTUS to order me to lie to him, in pursuit of the same goal? It seems to me that you're creating an arbitrary and meaningless distinction.

Once you start ripping apart morality and the rule of law, who's in charge of deciding that no more ripping should be allowed? And if the president is always free to call for just a teeny bit of ripping (always for morally pure reasons, of course), how can you claim the president is not above the law?
9.15.2008 9:53am
jukeboxgrad (mail):
flim:

What you have are people arguing about whether the President's inherent authority is unconstitutionally invaded by FISA restrictions. These are unsettled and complex issues. Both sides are well within the bounds of good faith legal argument.


Fair enough, but sig said this:

I love your casual assumption that the law was violated.


Those words are not the words of someone who is trying to make a "good faith legal argument." Because the idea "that the law was violated" is based on a lot more than a "casual assumption." When Dale Carpenter said "the NSA program is both illegal and unconstitutional" he was not just making a "casual assumption."
9.15.2008 9:53am
Milhouse (www):

Why not? If (as you claim) it's morally proper for POTUS to break the law in order to ostensibly protect the nation, why is it not proper for POTUS to order me to lie to him, in pursuit of the same goal?

Because my saying it's legal doesn't make it so. It's either legal or not; if illegal it may still so vital that it's worth doing anyway, but lying about its status doesn't change anything. (If the President ordered me to lie to others in order to trick them into doing what needed to be done, that might under some circumstances be reasonable; but ordering me to lie to him can never make sense. If he's going to decide to break the law, he should bloody well be aware of what he's doing.)
9.15.2008 10:31am
Anderson (mail):
So why can the President not authorize warrantless domestic surveillance as Commander-in-Chief of the military?

The Youngstown case would seem to be the first place to look:

When the President takes measures incompatible with the expressed or implied will of Congress, his power is at its lowest ebb, for then he can rely only upon his own constitutional powers minus any constitutional powers of Congress over the matter. Courts can sustain exclusive presidential control in such a case only by disabling the Congress from acting upon the subject. Presidential claim to a power at once so conclusive and preclusive must be scrutinized with caution, for what is at stake is the equilibrium established by our constitutional system.


And a less-often-quoted passage from Justice Jackson:

There are indications that the Constitution did not contemplate that the title Commander in Chief of the Army and Navy will constitute him also Commander in Chief of the country, its industries and its inhabitants. He has no monopoly of "war powers," whatever they are. While Congress cannot deprive the President of the command of the army and navy, only Congress can provide him an army or navy to command. It is also empowered to make rules for the "Government and Regulation of land and naval Forces," by which it may to some unknown extent impinge upon even command functions. * * *

I should indulge the widest latitude of interpretation to sustain his exclusive function to command the instruments of national force, at least when turned against the outside world for the security of our society. But, when it is turned inward, not because of rebellion but because of a lawful economic struggle between industry and labor, it should have no such indulgence. His command power is not such an absolute as might be implied from that office in a militaristic system but is subject to limitations consistent with a constitutional Republic whose law and policy-making branch is a representative Congress. The purpose of lodging dual titles in one man was to insure that the civilian would control the military, not to enable the military to subordinate the presidential office. No penance would ever expiate the sin against free government of holding that a President can escape control of executive powers by law through assuming his military role.



I love your casual assumption that the law was violated.

Did you even read the article that Adler linked?

Goldsmith and Comey both knew the details, and they both agreed that it was illegal -- despite the gravity of the program.

Who's the one making "casual assumptions"?
9.15.2008 11:05am
Silly:
Sheesh. Round and Round and Round it goes. I'm looking forward to 15 years or so down the road when we can hopefully get all the facts and actually be able to tell what happened. I guess we just have to deal with the silliness until then :)
9.15.2008 7:29pm
LM (mail):
Silly:

Sheesh. Round and Round and Round it goes. I'm looking forward to 15 years or so down the road when we can hopefully get all the facts and actually be able to tell what happened. I guess we just have to deal with the silliness until then :)

I envy your naiveté. Anyone old enough to remember what we fought about twenty, much less forty years ago knows that our fact fights about current events will only ripen into mid-century revisionism wars.
9.15.2008 8:01pm
Silly:

I envy your naiveté. Anyone old enough to remember what we fought about twenty, much less forty years ago knows that our fact fights about current events will only ripen into mid-century revisionism wars.


Well, I'm pretty old, and there's been a ton of things people have fought about 20 or 40 years ago..

But on the naivete, it's not at all. I choose not to spend my days getting all bothered about things like these where we don't have all the facts. There's too much else to savor in life, and there's so many things where we DO have all the facts to contemplate.

I understand that perhaps you don't feel the truth will come out. I think it will. Sure, for a period of time some people will hide certain details because they don't want to embarrass someone (isn't that the prime reason for hiding things? vanity?), but those someones will pass, and afterwards the blocks will go away. Be patient; there will be nothing more rewarding than being able to look at the whole thing from a disconnected view and being able to say "aha!".
9.15.2008 8:48pm
LM (mail):
Silly:

I understand that perhaps you don't feel the truth will come out. I think it will.

What I actually expect isn't nearly as absolute as my comment suggests. I was trying to be a smart-ass in 30 words or less (I failed). So yes, I agree that some things will be revealed in time. But I disagree that much of the concealment which isn't legitimate is a by-product of vanity. I suspect that more of it results from judgment clouded by ideology and misplaced loyalty. And since that's the stuff of our domestic political battles, it does often survive the original combatants, to be passed on to subsequent generations of partisan historians and others with axes to grind.

But I applaud your philosophical outlook.
9.15.2008 10:19pm
wm13:
What's interesting to me is that whatever people in 40 years think of the Bush administration's surveillance program, it will probably be something that isn't a major component of today's debates. For instance, there were people who objected to Roosevelt's internment of Japanese Americans, but mostly on the grounds that it was unnecessary and/or unfair, because no individualized findings of guilt or risk were made. Whereas today, the primary (and generally considered unanswerable) objection to the internment is that it was racist. That is, people today accept that the government might treat people unfairly from time to time, but for the government to treat people unfairly because of racial prejudice is wholly unacceptable. That would have seemed very strange to our grandparents.

So remember, whether history absolves or condemns you, it will probably be for things that you aren't thinking about and don't consider important.
9.16.2008 12:05am
jukeboxgrad (mail):
milhouse:

ordering me to lie to him can never make sense


OK, fair enough. Thanks for the careful and rational answer, although you know that I disagree with the underlying philosophy.

I think "ordering me to lie to him" can indeed make sense, depending on how you frame the scenario. When I talk about POTUS asking me to lie to him, what I mean is him winking at me, which means him asking me to write an opinion that we both know is false, but that will serve him politically. I think you would claim this is OK, if POTUS thinks it's a matter of national security. It's just hard for me to grasp how this is compatible with the idea that POTUS is not above the law.
9.16.2008 11:50am