LOS ANGELES –
The Bush administration announced this week that it would allow a secret court to review the constitutionality of its secret NSA wiretapping program. This followed the earlier announcement that it would apply the protections of the Geneva Convention to the prisoners at Guantanamo Bay.
In other words, the administration is, slowly but surely, allowing itself to be governed by the law.
It’s about time.
This effort by the administration to place itself above the law was doomed from the beginning, an unnecessary grab for power, an attitude gone wrong.
Last spring, I debated John Yoo at the University of Houston. Yoo was the architect of the policy of “no law.” He is a tremendously nice and smart guy who teaches at Boalt Hall Law School at Berkeley. He is the last person you’d think of as the architect of one of the biggest power grabs in modern constitutional history.
And yet, as he outlined his theories to the audience, it became clear that that was exactly what the Bush administration had in mind.
No, he explained, the usual constitutional rules didn’t apply to the detainees because this wasn’t a criminal proceeding: no fourth, fifth or sixth amendment; no due process clause, right to counsel, privilege against self-incrimination.
And no, he also explained, the rules of war didn’t apply, including the Geneva Convention, since Al Qaeda wasn’t really a state, hadn’t signed the Convention.
I stood there, silent. Unusual for me. So what law does apply, I asked. And the answer, of course, was that no law applied.
If the Constitution didn’t apply, and the Geneva Convention didn’t apply, then there was no external source of law limiting the executive branch of the U.S. government. The law was whatever they said it was. They could do whatever they decided.
This was John’s area of expertise more than it was mine, but I’ve been a lawyer for almost 30 years, and I know one thing:
When you can make it up yourself, it doesn’t count as law. When you can decide who to apply it to, and how, with no review, that’s not law. That dog was not going to hunt in front of the Supreme Court of the United States.
So now the administration is doing belatedly what it should have done at the outset. Specter and Cheney have been negotiating. This is what they came up with.
Unfortunately, some of the damage has been done, not only to individual rights, but to our reputation in the world. Whether anything would have been lost in the first instance by following the law only they can say, but certainly much time and energy has been lost in the exercise of trying to avoid it, not to mention the issue of reputation.
But now that the Bush administration has had its head handed to it, figuratively speaking, it is time to stop trying to dance on the dime. The latest proposal for review of NSA wiretapping is one more effort by the Bush people to restrict, if not eliminate, the scope of judicial review.
Yes, they’ve finally agreed to let a court review the constitutionality of the program; but the tentative agreement they have reached with Judiciary Committee Chairman Arlen Specter is even more limited than a separate proposal backed by Republican Senator and former military lawyer Lindsay Graham.
For instance, the Specter agreement doesn’t actually require the president even to submit the program for court review if the legislation is amended in any way that the Bush administration disagrees with. It doesn’t require the secret court to make public its decision. It allows the administration to make changes to respond to any of the judges' concerns and then resubmit the program for review, as well as providing for immediate appeal of any negative rulings.
Responding to criticism that the bill was so weak that the president could evade it completely, Specter said:
“The bill does not mandate the president to submit the program to the court because the president did not want to institutionally bind presidents in the future. And I respect that and understood his point of view.”
It is time for Sen. Specter to stop respecting that point of view. That is the point of view that produces no law. Constitutional arrogance, even from the nicest people, does not deserve respect and understanding. Binding future presidents to obey the rule of law is the rightful job of Congress and the courts.
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Estrich's books include "Real Rape," "Getting Away with Murder: How Politics is Destroying the Criminal Justice System," "Dealing with Dangerous Offenders," "Making the Case for Yourself: A Diet Book for Smart Women" and "Sex & Power," currently a Los Angeles Times bestseller.
She served as campaign manager for Michael Dukakis' presidential bid, becoming the first woman to head a U.S. presidential campaign. Estrich appears regularly on the FOX News Channel.