ChezLark

As reported by the Washington Post, the President’s warrantless wiretapping program is getting a certain measure of scrutiny: an “oversight” board, serving “at the pleasure of the President“, reporting to the President, and run as part of the Executive Office of the President, was briefed about the wiretapping program after having been stonewalled for more than a year:

After a delay of more than a year, a government board appointed to guard Americans’ privacy and civil liberties during the war on terror has been told the inner workings of the government’s electronic eavesdropping program.

Members say they were impressed by the protections.
[...]
“We found there was a great appreciation inside government, both at the political and career levels, for protections on privacy and civil liberties,” said [Alan] Raul, author of a book of privacy and civil liberties. “In fact, I think the public may have an underappreciation for the degree of seriousness the government is giving these protections.”

…which brings us to today’s meme: Thoughtful People have Examined the Warrantless Wiretapping Program and found it to be OK, so there is No Reason to Worry. A good example of this meme being propagated is available at this Red State post:

The hysteria surrounding this program might finally start receding, as long as these remarks get some significant play. After all, having a former Clinton aide wish he could reveal more about a secret program to reassure people of the good work done by it rather than to torpedo the Bush administration should raise some eyebrows among the paranoid. Former Reagan counsel Alan Raul went even further, telling John Solomon that he believes that the public underestimates the level of concern and dedication for civil liberties in the federal government.

There are (at least) three things wrong with this meme:

1. The most important problem with the wiretapping program is that it appears to be illegal, and in fact has been ruled illegal by a federal judge (a ruling that is being appealed). Opining that the program is carefully run, or even highly respectful of privacy and civil liberties, is beside the point. In this country, we value the rule of law, and that means the President doesn’t get to do whatever he wants, even if he thinks it would be Good Policy to ignore certain federal statutes. Those respectful of the rule of law should oppose illegal government action, even if they think it is For the Best, and instead push to have the laws changed.
2. The White House and right-wing pundits dispute whether the program is, in fact, illegal. Fair enough, although it’s hard to tell one way or the other, since the details of the program are classified, and the government has actively fought any judicial review whatsoever. Regardless, in our system of government, it is not the job of politicians to rule on whether a governmental action is legal or not; that is the job of judges, and the reason why the judiciary is a completely independent branch of government. So, to the extent that the review board is purporting to offer a legal opinion (which is not even clear from coverage), their analysis is of little or no value, not least because it is utterly non-binding.
3. The Thoughtful People offering opinions about this program were hand-picked by the President and report to him, so it’s hard to take them seriously in the first place. This underscores again why the judiciary is a separate branch of government: disputes over the legality of government action are meant to be resolved by a dispassionate arbiter.

Glenn Greenwald has a good formulation of Problem #1 (bold is mine):

The heart of the matter is that the president broke the law, deliberately and repeatedly, no matter what his rationale was for doing so. We do not have a system of government in which the president has the right to violate laws, even if he believes doing so will produce good results. . . .

The NSA eavedsdropping scandal, as its core, is not an eavesddropping scandal. It is a lawbreaking scandal . . .

Anonymous Liberal has a good formulation as well (bolds are mine):

The fundamental issue here is not what sort of privacy protections the NSA program does or does not provide; the problem is that the NSA program does not comply with the law.
[...]
FISA, which was passed by Congress and signed into law by the president, requires that the government seek warrants (either prospectively or retroactively) from a specialized court when conducting surveillance of U.S. citizens. This prohibition is categorical, and the Bush administration has no legal justification for disregarding it [...]. This is a BIG DEAL. A constitutional system of government cannot tolerate a chief executive who operates outside of the law, even if, in doing so, he implements policies that [oversight board member] Lanny Davis thinks are swell. There is no ‘Lanny Davis exception’ to the rule of law.

I’ll toss in a bonus point about this kind of comment:

While board members were impressed, the top Democrat on the Senate Intelligence Committee urged colleagues on Monday not to approve legislation formally legalizing the NSA program until Congress gets more answers.

“Formally legalizing”, here, is a weasely phrase. As I’ve pointed out before, the White House can’t have it both ways: if Congressional action is necessary to legalize the NSA program, then it’s currently illegal. If, as the White House insists, the current program is perfectly legal because the President has the power to ignore statute, then Congressional action is not only unnecesary, it’s utterly pointless.

Every time the White House urges Congress to legalize their actions, they are declaring that what they’re doing right now is illegal. This is not a difficult point to grasp.

Put that in your pipe and smoke it.