Tuesday, September 11, 2007
Sandy Levinson
Maureen Dowd concludes her column in tomorrow's Times with the following:
As Lindsey Graham joked to the witnesses about Congress, referring to the talk of the dysfunctional Iraqi government, “You could say we’re dysfunctional and you wouldn’t be wrong.”
First, is Graham basically correct in describing our present government as "dysfunctional"? I clearly believe it is, and not only because of "failures of leadership" and the like, but also because of our grossly deficient constitutional structure. I presume that Graham would not agree with my disagnosis, but that doesn't affect whether he actually believes that a reasonable person could describe the current American government (by which I do not mean simply the Bush Administration) as "dysfunctional." Second, if he does believe this, why is this a "joking" matter? Is this supposed to be a kind of whistling past the graveyard, where we are reminded of our own inevitable mortality and wish to deny it, perhaps by engaging in "gallows humor"?
On another, but related, matter, I am absolutely delighted that Charlie Savage is posting on Balkinization. I fear, also, that he is basically correct in his prognostication about the long term affects of the Cheney-Addington view of executive power. Jack and I, of course, have been writing about the emergence of the "national surveillance state" as a complementary successor to the more straightforward "national security state" of the post-World War II, and part of our argument is that presidents of both parties gladly participated in the rise of this state. Furthermore, I think that Cheney and Addington may be somewhat wily in their very excesses. Duncan Kennedy once described his own role at the Harvard Law School, where he made a variety of seemingly audacious pronouncements, as creating space for other people on the left to appear more "reasonable," since they could always say that they were not so extreme as Kennedy. So one can now score points by taking more "sane" views of executive aggrandizement, as was true in the plurality opinion in Hamdi, for example, which gave a way a lot of, even if not all, the store (which Thomas would have done). And, as Jack Goldsmith forthrightly admits, the brunt of his criticism of his former colleagues is procedural, focusing on their arrogant unilateralism, rather on the substance of their policies. He is calling for greater partnership between President and Congress in passing legislation that many of us would find problematic, either on policy or constitutional (assuming the two can be distinguished) grounds. The opinion in Hamdan, of course, rested on just such a proceduralist argument, and the response was the passage of the MCA by an outstandingly supine Congress. Does anyone have much doubt that a President Clinton (or Obama) would receive full-scale cooperation from a Democratic Congress should she/he seek enhanced presidential power, precisely because they will appear to be so much more moderate than Cheney-Addington in their views of unilateral, basically Schmittian, presidential authority?
Recall that Constitution Day is only six days away. I hope everyone posts with his/her plans for the great occasion.
Tuesday, September 11, 2007
Marty Lederman
Jim Comey delivered
this speech 28 months ago. Back then, it would have seemed rather standard-issue, hardly worthy of publication in a legal journal. But his audience on that day in May 2005 -- an assemblage at the National Security Agency -- knew all-too-well exactly what he was saying, and how audacious it was in light of what Comey and the NSA had recently been through.
In light of what we now know, kudos to the Green Bag for publishing Comey's speech unadorned, without introduction. A pertinent excerpt:
The lawyer is the custodian of so much. The custodian of our own personal reputations, surely. But more importantly, the custodian of our institutional reputations. And most importantly of all, the custodian of our constitution and the rule of law.
It is the job of a good lawyer to say “yes.” It is as much the job of a good lawyer to say “no.” “No” is much, much harder. “No” must be spoken into a storm of crisis, with loud voices all around, with lives hanging in the balance. “No” is often the undoing of a career. And often, “no” must be spoken in competition with the voices of other lawyers who do not have the courage to echo it.
For all those reasons, it takes far more than a sharp legal mind to say “no” when it matters most. It takes moral character. It takes an ability to see the future. It takes an appreciation of the damage that will flow from an unjustified “yes.” It takes an understanding that, in the long-run, intelligence under law is the only sustainable intelligence in this country.
P.S. One oddity in the speech: Comey refers at one point to the public's view of the legal profession: "(T)hey see blood-sucking divorce lawyers, greedy class-action lawyers, weasel ACLU lawyers, and timid DOJ lawyers."
"Weasel" ACLU lawyers? I know there might be a lot of folks -- perhaps especially in Comey's audience that day -- who have some unkind words to say about the ACLU. But "weaselly"? What's that about?
bygone
(This is Charlie Savage from the Boston Globe. I wrote this blog for TPMCafe's
book salon and am cross-posting it here.)
Several people in the
comments section yesterday questioned my contention that presidential power is not a partisan issue because future Democratic presidents will enjoy the same enhanced authorities that the Bush-Cheney administration has pioneered. They noted that the push to concentrate more power in the White House in recent decades has been largely the work of Republican administrations, and they argued that a future Democratic administration would behave differently. So this raises a question worth examining in more detail: Will the
Cheney Project outlive the Bush-Cheney administration?
As many of you know, my new account of the Bush-Cheney administration’s efforts to expand presidential power,
Takeover, is coming out alongside Jack Goldsmith’s new memoir of his 10-month tenure as head of the Office of Legal Counsel,
The Terror Presidency. Our books complement each other in many respects: mine, based on interviews and documents, is a comprehensive overview of many different aspects of the project to expand White House power; Goldsmith’s, based on his own experiences, focuses on one particularly important component: the effort to free the commander-in-chief from a need to obey rules -- laws and ratified treaties – in national security matters.
In one important respect, our two accounts diverge. Goldsmith argues that the Cheney-Addington effort to expand presidential power has backfired, and the ironic result is that future presidents will be weaker. I argue that their push has been the administration’s most successfully implemented policy, and that future presidents will be stronger as a result. So what will follow after the Bush-Cheney administration passes into history?
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