Friday, January 13, 2006

Horsefeathers vs. Poppycock: Constitutional scholars weigh in.

King George W's domestic spying program has been defended by his Department of Justice attorneys. I described the defense as "horsefeathers," and later, I learned that Laurence Tribe, asserts that the technical term is actually "poppycock." There is new information which bears on the "horsefeathers" vs. "poppycock" controversy.

In a December 22nd letter to the Senate Select Committee on Intelligence, Assistant Attorney General William E. Moschella wrote that the "President determined it was necessary following September 11 to create an early warning detection system. FISA could not have provided the speed and agility required for the early warning detection system."

Today, we learned from that:
The National Security Agency advised President Bush in early 2001 that it had been eavesdropping on Americans during the course of its work monitoring suspected terrorists and foreigners believed to have ties to terrorist groups, according to a declassified document.

Even more significantly, a group of 14 legal scholars have disputed Moschella's legal analysis, saying in a letter just sent to Congress that the White House failed to identify "any plausible legal authority for such surveillance."

Who is this gang of 14? The usual assortment of deans of law schools, former counsellors to the president, with a former Director of the FBI thrown in for good measure. Here's the complete list:

  • Curtis Bradley, Duke Law School, former Counselor on International Law in the State Department Legal Adviser's Office

  • David Cole, Georgetown University Law Center

  • Walter Dellinger, Duke Law School, former Deputy Assistant Attorney General, Office of Legal Counsel and Acting Solicitor General

  • Ronald Dworkin, NYU Law School

  • Richard Epstein, University of Chicago Law School, Senior Fellow, Hoover Institution

  • Philip B. Heymann, Harvard Law School, former Deputy Attorney General

  • Harold Hongju Koh, Dean, Yale Law School, former Assistant Secretary of State for Democracy, Human Rights and Labor, former Attorney-Adviser, Office of Legal Counsel, DOJ

  • Martin Lederman, Georgetown University Law Center, former Attorney-Adviser, Office of Legal Counsel, DOJ

  • Beth Nolan, former Counsel to the President and Deputy Assistant Attorney General, Office of Legal Counsel

  • William S. Sessions, former Director, FBI, former Chief United States District Judge

  • Geoffrey Stone, Professor of Law and former Provost, University of Chicago

  • Kathleen Sullivan, Professor and former Dean, Stanford Law School

  • Laurence H. Tribe, Harvard Law School

  • William Van Alstyne, William & Mary Law School, former Justice Department attorney

  • Their very detailed legal analysis leaves no doubt that the President's conduct was illegal, but they ducked the whole the "horsefeathers" vs. "poppycock" controversy. I suggest we let Princeton Professor Harry G. Frankfurt cast a deciding vote.

    “… and tell ’em Big Mitch sent ya!”

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