The Boston Globe is not exactly breaking news on its front page this morning, running a story in which they found "legal specialists" who were willing to call the President a liar. This matches, of course, the general position of the Boston Globe on the Bush administration, so these specialists are credible and believable, and warrant front-page mention.
Legal specialists yesterday questioned the accuracy of President Bush's sweeping contentions about the legality of his domestic spying program, particularly his assertion in his State of the Union speech on Tuesday that "previous presidents have used the same constitutional authority I have."
Shortly after the terrorist attacks of Sept. 11, 2001, Bush authorized the National Security Agency to intercept overseas calls from the United States without first seeking a warrant, asserting he had the right to do so under his wartime powers. On Tuesday night, he defended his program by saying past presidents have exerted the same powers.
But legal specialists said yesterday that wiretaps ordered by previous presidents were put in place before warrants were required for investigations involving national security. Since Congress passed the law requiring warrants in 1978, no president but Bush has defied it, specialists said.
Aside: I'm not a lawyer, or a law professor, or a legal scholar. But I am skeptical of Congress' ability to, by statute, remove constitutionally mandated executive powers.
Bush's contention that past presidents did the same thing as he has done "is either intentionally misleading or downright false," said David Cole, a Georgetown University law professor. Only Bush has made the assertion that his wartime powers should supersede an act of Congress, Cole said.
Bush's assertion that his program was legal prompted a group of 14 prominent law professors, including both liberals and conservatives, to pen a joint letter objecting to his arguments.
The piece states, as noted, that the group questioning the legality of the program consists of both liberals and conservatives, but they've quoted three of them, and none is a conservative. The closest is probably University of Chicago Law School Professor Richard Epstein, but he's a libertarian, not a conservative. Philip Heymann of Harvard was an assistant AG in the Clinton administration.
And David Cole? Professor Cole from Georgetown, quoted the most extensively, the one who sets the tone? He's the legal affairs editor of The Nation magazine, and he's been railing against the Bush administration since 9/11. In December of 2001, he wrote of The Patriot Act that "this provision in effect resurrects the philosophy of McCarthyism, simply substituting 'terrorist' for 'communist.' " So anyone looking for a legal specialist to criticize the Bush administration's approach to National Security needs go no further than Professor Cole, and the Boston Globe is not the first to do so.
In any event, the bottom line really comes down to this - had the Globe been interested in supporting the President's surveillance powers they could no doubt have found "legal specialists" to cite. Anyone who, at this point in time, is saying with certaintly that the program is either illegal or legal is simply speculating. The people who know the actual details of the program aren't talking, the controlling legal authorities and theories have not been outlined in public, and there has been no ruling from a court either forbidding or allowing. Under those circumstances, how newsworthy is it that a group of law professors thinks it illegal? And if a group of 14 more comes out today with a letter defending the program, will that make the front-page of the Boston Globe tomorrow?
My speculation would be, probably not...
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