Thursday, August 31, 2006
U.S. District Judge Anna Diggs Taylor in Detroit ruled not long ago that:
The President of the United States, a creature of the same Constitution which gave us these Amendments, has undisputedly violated the Fourth in failing to procure judicial orders as required by FISA, and accordingly has violated the First Amendment Rights of these Plaintiffs as well.
Here’s the kicker: FISA is a criminal statute.
(a) Prohibited activities
A person is guilty of an offense if he intentionally—
(1) engages in electronic surveillance under color of law except as authorized by statute; or
(2) discloses or uses information obtained under color of law by electronic surveillance, knowing or having reason to know that the information was obtained through electronic surveillance not authorized by statute.
It is a defense to a prosecution under subsection (a) of this section that the defendant was a law enforcement or investigative officer engaged in the course of his official duties and the electronic surveillance was authorized by and conducted pursuant to a search warrant or court order of a court of competent jurisdiction.
An offense described in this section is punishable by a fine of not more than $10,000 or imprisonment for not more than five years, or both.
(d) Federal jurisdiction
There is Federal jurisdiction over an offense under this section if the person committing the offense was an officer or employee of the United States at the time the offense was committed.
Judge Taylor was ruling on a civil lawsuit, but her finding is that the President violated a criminal statute. This is not equivalent to a criminal conviction, but it is a judicial ruling that the President’s conduct is criminal.
To put it another way, a federal judge has issued a ruling that, among other things, concludes that the President has committed multiple felonies.
Now, let me ask you: doesn’t this fact seem significant? If the NSA program is illegal, it will need to stop, and that’s important. But the law that makes it illegal is a criminal law, and if the program is illegal (as most analysts now seem to conclude is obvious), then that makes the President a felon. This seems very significant and newsworthy to me, but tell me: how much attention has this crucial fact received in mainstream coverage?
Glenn Greenwald has some discussion of this strange state of affairs.
This has been the most bizarre part of the NSA scandal all along: the President got caught red-handed violating an extremely clear law — he admitted to engaging in the very behavior which that law says is a felony punishable by up to 5 years in prison and a $10,000 fine — and yet official Washington (the political and pundit classes) simply decided to pretend that wasn’t the case.
They agreed to acquiesce to the administration’s fiction that there are some sort of complex and difficult legal questions with which one must grapple, and that only shrill partisans say that the President is violating the criminal law. And thus, a Washington ruling class which reveled in subpoenas and criminal investigations over such towering matters as Whitewater, Vince Foster and Monica Lewkinsky has collectively decided that talk of criminality on the part of the President for how he is spying on Americans is imprudent and unserious.
I added the bold. This is a criticial point, I think: it does seem, at least to me, that the subtext in the non-coverage of the president’s criminal liability is that it’s unserious to frankly confront the possibility that our President is a felon, and that anyone who brings this up is, frankly, not to be trusted.
But the facts are the other way around: the President has, on national television, admitted to personally authorizing and re-authorizing, no less than thirty times, a wiretapping program that was consciously and deliberately constructed in violation of a federal criminal statute. No Democratic partisan trickery can be blamed for creating the possibility that the President is subject to thirty or more criminal felony charges; he did that all on his own.
It is remarkable that the Republicans have managed to frame the public debate over the President’s actions so effectively that a public admission that the President deliberately violated criminal law has led to virtually no discussion of the obvious question of whether there can now be any doubt that he is, in fact, a criminal.
But Judge Taylor’s ruling — with its very un-Beltway irreverence towards the President, and free of the fear of describing the President’s lawbreaking as what it is — is forcing that question out into the open, which is what explains so much of the hostility towards Judge Taylor. This judge, unknown to the Important People in academia and the political power centers, sitting in her little Detroit courtroom, has broken the rules. She used language which is uncouth (she pointed out the obvious — that this President has pretenses to being a King) and refused to pay homage to the false orthodoxy that there are really difficult questions triggered by the President’s refusal to abide by the criminal law. How irresponsible, unscholarly and unserious she is.
This is the way in which control of the debate is achieved. The President can’t be acting criminally, by definition. Although it would appear obvious and straightforward that the President deliberately broke the law, we are instead to believe that there are weighty and complicated issues of unresolved law that we cannot hope to understand. When a judge, whose job it is to analyze those questions of law, says that the issue is indeed straightforward and that the President’s actions are criminal, she must be mistaken. By definition.
Oh, and We Have Always Been At War With Eurasia.