Thursday, January 31, 2008

Nixon redux: "It's not a crime if nothing was done about it..."

Back in the halcyon days of Tricky Dick, we had this nugget of jurisprudence from one lawyer:
[Nixon, to David Frost]: "Well, when the president does it that means that it is not illegal."
Now, our esteemed Attorney General Michael Mukasey, lauded prior to confirmation for his judicial temperament and experience, has taken on his new job with gusto, and refined this 'logic'.

First, he's declined to decide whether waterboarding is torture on the grounds that we're not doing it any more (for the time being):
Mukasey said in the letter that waterboarding -- a simulated drowning meant to coerce disclosures by a resisting prisoner -- is not part of a "limited set of methods" being used by CIA interrogators. Mukasey said he has found the current methods, which he did not specify, to be legal.

"I understand that you and some other members of the (Judiciary) Committee may feel that I should go further in my review, and answer questions concerning the legality of waterboarding under current law," Mukasey wrote to Leahy. "I understand the strong interest in this question, but I do not think it would be responsible for me, as attorney general, to provide an answer."

(see also my post below)

Of course, should the preznit decide that the CIA should do waterboarding again, we'll just have that same convenient "grey area", to be filled with shredded OLC memos, blathering about the vagueness of statutes and treaties, and "reasonable people can disagree"....

Next on the agenda, warrantless wiretapping:

In today’s Senate Judiciary Committee hearing, Attorney General Mike Mukasey refused to answer whether Bush had violated the Foreign Intelligence Surveillance Act under the Terrorist Surveillance Program.

Under questioning from Sen. Arlen Specter (R-PA), Mukasey said he “can’t contemplate” a situation where President Bush would assert “Article II authority to do something that the law forbids.”

Specter shot back, “Well, he did just that in violating the Foreign Intelligence Surveillance Act…didn’t he?” Mukasey continued to hedge:
MUKASEY:I think we are now in a situation where [that issue] had been brought within statutes, and that’s the procedure going forward

SPECTER: That’s not the point. The point is that he acted in violation of statutes, didn’t he?

MUKASEY: I don’t know whether he acted in violation of statutes.
(h/t to Think Progress)

That's all just "water over the cellophane wrapped over the mou..." -- umm, sorry, "... over the damned". That's sooooooooo 'yesterday'. Can't we just move on?!?!? After all, it's now "been brought within statutes" (thanks, spineless Democrats afeerd of the Republicans calling them "Osama bin Forgotten's little helpers"), and no one's breaking the law any more. Kind of like, "Don't put me in jail, I'm good now, I promise, and won't do any more axe murders...." Why should the Department of 'Just Us' prosecute the maladministration (see: "Nixon" and "not illegal")? And while we're at it, seeing as the DoJ can only thwart criminal actions, let's pass a law to give amnesty to the telecoms as well, so that we can prevent even citizen action in civil court that might hold lawbreakers actually accountable for their illegal actions....


At 4:15 PM, Blogger Jim White said...


Over at Emptywheel, Marcy is parsing Cheney's language in his last statements regarding FISA. She has some very interesting observations, if you haven't seen them.
In the comments there, I've asked whether others are interested in the timing of the "interruption" in the undersea fiber optics cables off Egypt which is disrupting internet access to much of the Middle East. I'm wondering if there could be any connection to the potential expiration of PAA in two weeks. Do you have any thoughts on this? I note that the backup system for many of the providers is satellite-based. That takes them back to the technology covered under the original FISA, doesn't it?

At 6:04 PM, Blogger Arne Langsetmo said...

This comment has been removed by the author.

At 6:10 PM, Blogger Arne Langsetmo said...

Thanks for the tip, Jim; I'll go check it out.

As I said on Glenn's blog in some comments there, I don't think that interception of satellite conversations is any different than wire conversations if intercepted overseas. I think that 50 USC § 1801(f)(3) applies to broadcast radio, and that a rational interpretation of "wire communications" would include the same set of "wire" communications even if by happenstance some portion of them is conveyed by microwave relay domestically or satellite GHz links across oceans.

If my take is right, it really doesn't matter much whether the intercept of calls is done by overseas snooping of satellites or by tapping optical links offshore. Thus I don't see any obvious reason why we should worry any more or less that the modality has changed from optical cable to satellite (other than, perhaps the ease of tapping).

That said, if the locus of intercept is not in the United States, then § 1801(f)(2) doesn't apply even for telephone calls and other similar point-to-point communications unless the "target" is a "United States person" within the U.S. (so that § 1801(f)(1) applies).



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