The 42 Page NSA White Paper

I remember the Watergate era vividly as if it were yesterday. I remember my reaction to some of the initial allegations against members of the Nixon administration and my initial assumption that the problems were restricted to lower level officials. It became apparent in time that the problems went all the way to the Oval Office and then some. I was disgusted that some Republicans tried to defend Nixon by saying that Johnson and Kennedy had done the same thing while only weeks earlier those same Republicans were espousing Nixon's innocence. We're hearing the same echoes today.

Nixon's defense for a long time was that he had no knowledge of these activities and that he was proceeding with an internal investigation. The truth was the opposite. I clearly remember Nixon's son-in-law, David Eisenhower, giving the word that Nixon's defense had crumbled when the tapes came out and there it was, just days after the Watergate break-in: Nixon knew everything and was clearly obstructing justice with a cover-up, etc., etc.; already at that point, other misdeeds were coming to light.

I mention this because I can't avoid my reaction to George W. Bush. All my instincts tell me the smell of Nixon is on the 43rd president. Smelling something, of course, isn't the same as proving it in a court of law. Most of what I know of the law can be said simply: if it smells wrong, it probably is. I know the law as it is practiced in our country doesn't always work that way, and I know that different people have different views about what smells wrong, but most of the time it's still a reasonably good principle for personal conduct. And it's a principle that doesn't seem to operate in the White House. Again, I'm no lawyer, but my evidence for the ethical breakdown of the White House is the avalanche of clever memos and convoluted explanations for administration behavior.

Below is a link and a few paragraphs of an analysis of the NSA White Paper by The Anonymous Liberal who apparently is a graduate of Columbia Law School. I don't know The Anonymous Liberal and I offer the usual caveats but I believe the analysis is worth reading:

Yesterday the Department of Justice released a 42 page white paper entitled "Legal Authorities Supporting the Activities of the National Security Agency Described by the President." I've now read the paper in its entirety (something I don't recommend unless you're having trouble sleeping). The paper doesn't really offer anything new. It is essentially a long-winded version of the letter the DoJ released a few weeks ago. [I see Glenn Greenwald agrees]. While there is some effort to cast aspersions on the constitutionality of FISA, you can tell that the lawyers at the DoJ don't really believe in that argument (probably because it is so radical and extreme). So the vast majority of the paper focuses on the significance of the 2001 Authorization for the Use of Military Force (AUMF). The DoJ's argument, in a nutshell, can be stated as follows:

The expansive language of the AUMF provided statutory authorization for the president to conduct warrantless wiretapping outside of the framework provided for by FISA.

This is, of course, the very argument that the Congressional Research Service report convincingly rebuffed just last week. It is a position besieged by a number inconvenient facts, the most damning of which is that the AUMF says nothing whatsoever about electronic surveillance or FISA and no one in Congress appears to have thought they were giving the president the authority to operate outside of FISA. Indeed, there is evidence that the White House sought to have language added to the AUMF that would have strengthened this argument, but were specifically rebuffed. The white paper, not surprisingly, glosses over these difficult facts.