By Robert Silvey
On Tuesday, former Deputy Attorney General James Comey related his Shakepearean tale of George Bush’s thugs and the botched hospital/wiretap caper. Bush’s two hardnosed consiglieri—Al “Recollections” Gonzales and Andy “Screws” Card—descended on a comatose John Ashcroft to extract legal indulgences for their NSA sins, and only the FBI could fend them off. But then something about the wiretap program was changed (sorry, can’t tell you what, it’s secret) to something else (sorry, also secret) to keep Ashcroft and Comey from resigning. Nevertheless, Bush continued to break the law and ignore the Constitution. (Marty Lederman tells the tale in full here.)
Today, Bush appeared at a mutual-admiration “press availability” with Tony Blair, and Kelly O’Donnell of NBC News asked him about Comey’s story. He stonewalled, as usual. Did not answer the direct question about his involvement. Changed the subject to the necessity of the NSA warrantless-wiretap program. Security, you know. 9/11, 9/11, 9/11. Terrorists, terrorists, terrorists. We have nothing to fear but the diminution of fear. The actual words:
Q [O’Donnell] There’s been some very dramatic testimony before the Senate this week from one of your former top Justice Department officials, who describes a scene that some senators called “stunning,” about a time when the wireless — when the warrantless wiretap program was being reviewed. Sir, did you send your then Chief of Staff and White House Counsel to the bedside of John Ashcroft while he was ill to get him to approve that program? And do you believe that kind of conduct from White House officials is appropriate?
PRESIDENT BUSH: Kelly, there’s a lot of speculation about what happened and what didn’t happen; I’m not going to talk about it. It’s a very sensitive program. I will tell you that, one, the program is necessary to protect the American people, and it’s still necessary because there’s still an enemy that wants to do us harm.
And therefore, I have an obligation to put in place programs that honor the civil liberties of the American people; a program that was, in this case, constantly reviewed and briefed to the United States Congress. And the program, as I say, is an essential part of protecting this country.
And so there will be all kinds of talk about it. As I say, I’m not going to move the issue forward by talking about something as highly sensitive — highly classified subject. I will tell you, however, that the program is necessary.
Q [O’Donnell] Was it on your order, sir?
PRESIDENT BUSH: As I said, this program is a necessary program that was constantly reviewed and constantly briefed to the Congress. It’s an important part of protecting the United States. And it’s still an important part of our protection because there’s still an enemy that would like to attack us. No matter how calm it may seem here in America, an enemy lurks. And they would like to strike. They would like to do harm to the American people because they have an agenda.
They want to impose an ideology; they want us to retreat from the world; they want to find safe haven. And these just aren’t empty words, these are the words of al Qaeda themselves.
And so we will put in place programs to protect the American people that honor the civil liberties of our people, and programs that we constantly brief to Congress.
There were no followups. Bush speaks of “a lot of speculation.” No, not speculation, it was sworn testimony by a well-regarded Justice official, and if Bush has contrary information, he should correct the record. But he stonewalls instead. He knows that Comey is speaking the truth, and therefore he changes the subject. O’Donnell’s question is about Bush’s involvement and appropriate conduct for government officials. His response is a canned appeal to fear and a hypocritical pledge to support civil liberties and openly brief Congress.
The NSA program is not transparent, even to those members of Congress who are trying to conduct proper oversight. And it is deeply inimical to civil liberties. But O’Donnell’s question did not concern the NSA program. She asked Bush whether he sent the thugs and whether he approves of thuggery. We may infer from his silence that the answers are yes and yes.
Categories: Politics/Law/Government
Progressive Culture | Scholars & Rogues 
The WashPost provides an interesting analysis today from Douglas Kmiec, “a professor of constitutional law at Pepperdine University, … assistant attorney general and head of the Office of Legal Counsel to Presidents Ronald Reagan and George H.W. Bush.” Now, mind you, I’m the last guy who should be carping about excesses of style and literary flourishes. But when a professor of constitutional law is in the Washington Post addressing points of constitutional law, I guess I expect something more … professorly? Check out some of the turns of language here:
– staggeringly histrionic
– dramatic flair of the Saturday Night Massacre
– Frank Capra
– phenomenally stupid
– venal political intrigue
– obviously admirable fellow
– hospital intrigue
– testimonial flourish
– leisurely espionage structure
His article seems, on points of fact and hard analysis, to be astute and coherent. But the passages where he’s auditioning for the Tom Clancy role all seem to slant us in a certain direction, don’t they?
Is this just me, or is anybody else bothered by this?
I am as bothered as you, Sam, but I am not at all surprised. It is exactly what one would expect from the ridiculously partisan Kmiec and from the staggeringly unacademic Pepperdine University, political home to Ken Starr and other antidemocratic theocons. Kmiec is a shill for dictatorship. Though he wields the language of mainstream law, he would better be titled a professor of unconstitutional lawlessness. His oped is merely a ploy to advance himself as the next attorney general.
The astute Marty Lederman at Balkinization is more bothered than either of us, Sam. He shreds Kmiec in terms legal, logical, and linguistic, finally calling his arguments “at best, simply bizarre.” It’s a pleasure seeing a real legal mind at work