(updated below)
Last night, I participated in what I thought was an excellent panel discussion about the implications of the Comey testimony on Open Source with Christopher Lydon. The other panelists were Laurence Tribe and former Reagan DOJ official Bruce Fein, and the podcast recording can be heard here (or, if that link does not work, the podcast link can be found at the top of this page).
Beforehand, they asked me to begin the discussion by summarizing Comey's testimony, so the first ten minutes or so are devoted to that summary. The rest of the hour-long discussion is comprised of an examination of the legal and political issues arising from Comey's revelations.
I think the discussion really crystallizes what is at stake here, the reasons why the administration simply cannot be permitted to engage in this conduct with impunity. These revelations implicate the most elemental political principles of our country and self-evidently transcend partisan orientation. After all, from the beginning of the NSA scandal, the very conservative Fein has been, and continues to be, one of the most foreceful and eloquent advocates of the rule of law, having demanded as early as December 28, 2005 in The Washington Times that Congress impeach the President if he does not immediately cease his illegal, warrantless eavesdropping on Americans.
I will not be able to post much more today, if at all, so I will recommend the following posts/articles from today on this matter:
* A response from Marty Lederman to what Lederman politely calls "a profoundly misguided" Op-Ed in The Washington Post by former Reagan official and always-loyal Bush apologist Douglas Kmiec.
* In two posts -- here and here -- Anonymous Liberal digs back into some old NSA articles to piece together at least some of the likely changes made to the "refashioned" (though still unquestionably illegal) NSA program which were what satisfied Ashcroft, Comey and company to certify its legality.
* This typically insightful article from Dahlia Lithwick highlights the pervasive lawlessness -- the literal rejection of the rule of law -- which this episode proves is what propels the Bush administration.
* Fred Hiatt continues his awakening process with another Editorial in The Washington Post this morning (pointedly headlined on the Post's online front page: "What did Bush know and when did he know it"?), which demands that Bush answer questions (as he refused to yesterday) regarding his knowledge of, and involvement in, the series of events described by Comey.
Finally, I want to make the following two unrelated observations:
(1) Compared to the likes of, say, David Addington and John Yoo, it is certainly true that James Comey, John Ashcroft and Jack Goldsmith had slightly greater limits on what they would tolerate. But the praise for the latter has become excessive. The "heroic" trio still ultimately endorsed the unquestionably illegal warrantless eavesdropping program, along with the whole host of other radical and lawless Bush policies, from the indefinite and process-less detention of even U.S. citizens on U.S. soil to secret Eastern European prisons and a whole range of "enhanced interrogation techniques."
Also, if Comey was so appalled by the behavior of Card and Gonzales -- if, as he said, he found it so "improper" -- why did he wait almost three full years before disclosing it, and then do so only when compelled by the threat of a subpoena? Comey's testimony amounts to a recognition on his part that the Bush administration was spying on Americans for more than two years illegally, even in his view. Why did he not invoke the whistleblower channels to report this lawbreaking, opting instead to keep that conduct concealed as he remained at the Bush DOJ through the 2004 election? And why has he remained so silent for so long about conduct that he was so appalled by that he was prepared to resign?
One can accept that Ashcroft, Comey and Goldsmith are not quite as tolerant of blatant lawbreaking as Cheney, Addington and Yoo. But that is an extremely low bar. It is not entirely unlike heaping praise on someone who embezzles and commits fraud all because they drew the line and refused to cooperate with their comrades when it came time to, say, commit arson or murder. Comparatively speaking, they may be preferable to Dick Cheney, but they are hardly paragons of political virtue or stalwart defenders of the rule of law. Quite the opposite.
(2) It has seemed highly unlikely all along, and still does, that Bush is going to ever force Gonzales to leave, or that Gonzales will leave on his own. Independent of all the cultural and psychological dynamics that govern Bush's "loyalty" fetishses, the single most important asset Bush has right now is that the prosecutorial machinery is in the clutches of his most craven, obedient and loyal follower.
If Gonzales leaves, then his replacement will have to be confirmed by the Senate, which is highly unlikely to confirm anyone who is too politically loyal to the Bush circle. That means that the only alternative to Gonzales' staying is an independent Justice Department that acts in the interests of justice, rather than Bush's political and personal interests. That is what Bush fears most, and that is why Gonzales will almost certainly stay, unless he is forced out.
UPDATE: To clarify one point: what Ashcroft, Comey and Goldsmith did -- reversing the two-year-standing position of the OLC with regard to the President's Article II powers, pulling the legal rug out from a program which was obviously of intense importance to the President, and defying the President to his face -- was certainly commendable and took real courage. Nothing I wrote was intended to dispute or minimize that.
The issue is that to canonize them -- to pretend that they are some sort of Crusaders for the Rule of Law -- is to ignore the fact that they have endorsed and enabled some of the most radical and lawless presidential behavior in our country's history. Their "rebellion" is quite redolent of the rebellion from the McCain/Warner/Graham trio on torture, where they dramatically opposed the administration only to then acquiesce and endorse the crux of the radicalism in exchange for a handful of relatively minor modifications on the margins.
It's also quite redolent of the "maverick" acts of Arlen Specter, whereby he strikes dramatic poses of dissent only to end up accepting a "compromise" that is almost entirely illusory and thereby becomes the principal enabler of the crux of the illegality. The DOJ "heroes" here -- just like McCain/Warner/Graham and Specter -- ended their objections by not only accepting, but affirmatively endorsing, the core of the President's lawbreaking, i.e., his spying on Americans without the warrants required by FISA.
The danger from this misleading ritual is that the faux "dissenters" -- who are in fact loyal Bush ideologues in every meaningful sense -- come to been seen as principled heroes and thus define the outer limits of legitimate deviation from the Bush agenda. And any objections to whatever policies they endorse come to be seen as shrill and unserious (after all, even the Principled, Nonpartisan and Independent James Comey/John McCain/Arlen Specter have accepted it).
Just as Colin Powell came to mark the outermost limits of legitimate objections to the Iraq invasion, or the way McCain did with torture, or Specter on eavesdropping (whereby their ultimate embrace of Bush's extremism is deemed dispositive because of how "principled" and "independent" they proved themselves to be), turning James Comey or Jack Goldsmith into the Maverick Supreme Ethical Heroes is both inaccurate and counter-productive, given their hearty endorsement of the virtually full panoply of Bush lawbreaking.
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