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Norm Crosby and The New York Times Editorial Board.

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Yesterday the New York Times editorial board revealed that it had been laboring mightily to come up with a comprehensive attack upon the Bush Administration’s program to conduct surveillance of al Qaeda agents abroad as they contact their agents within the U.S: “Spies, Lies, and Wiretaps.” Because I was travelling most of the day, I didn’t post on the piece, but its amateurism on the constitutional issues made me wonder if there were any lawyers on the editorial board staff.

By the time I got home late last night, Powerline’s John Hinderaker had done the job of exposing the silliness of the piece and its deep though predictable dishonesty, but I was still wondering who, exactly, can put out such transparently ill-informed and reputation-damaging dross? It turns out that there are two lawyers among the 16 members of the Times’ editorial board: Adam Cohen and Dorothy Samuels. Their bios:

Adam Cohen is a lawyer and author, with a particular interest in legal issues, politics and technology. Before joining The Times editorial board in 2002, he was a senior writer at Time, where he wrote about the Supreme Court, Internet privacy and the Microsoft antitrust case, among other topics. Prior to entering journalism, he was an education-reform lawyer, and a lawyer for the Southern Poverty Law Center in Montgomery, Ala. He is the author of “The Perfect Store: Inside eBay” and co-author of “American Pharaoh: Mayor Richard J. Daley, His Battle for Chicago and the Nation.” A native of Manhattan, he is a graduate of the Bronx High School of Science, Harvard College and Harvard Law School.

A member of the editorial board since 1984, Dorothy Samuels writes on a wide array of legal and social policy issues. Prior to joining The Times, she briefly practiced corporate law with a big Wall Street firm, leaving there to pursue her interests in public policy and journalism. For four years, Ms. Samuels served as executive director of the New York Civil Liberties Union, the largest affiliate of the national A.C.L.U. In 2001, in a change of pace, she published a comic novel, “Filthy Rich.” Ms. Samuels is a graduate of Bryn Mawr College and Northeastern University School of Law.

(emphasis added.)

If there are other lawyers among this band of scribblers, they are not identified as such.

The best explanation for yesterday’s train wreck of law and logic is that neither lawyer worked on the piece. But the far more likely situation is that one or both did. Both worked in highly politicized legal environments during their non-journalism careers, which may explain why if they did write the piece they felt no obligation to even bother to deal with the abundant authority for the Adminsitration’s legal position on the NSA surveillance program.

But it seems more likely that the writer was unaware of, or unconcerned with the actual law and the cases. This is certainly the approach practiced by Jonathan Alter in my interviews with him on the same subject.

This basic lack of knowledge combined with a ready, and even fervent desire to argue positions which require that knowledge is strikingly odd. And very, very funny.

One television comedian of my youth was Norm Crosby. Crosby’s shtick was malapropisms –and a little of that went a long way. The intentional misuse of language invites the audience to laugh at the comic’s pretended stupidity, but it was a routine that never worked for me.

The NYT’s howler, though, was not intended to be shtick, but that’s what it ultimately is –harf-left legal babble shtick– and of a very amusing sort if you know anything about the Constitution. Take these lines from the Times (please):

The Constitution does suggest expanded presidential powers in a time of war. But the men who wrote it had in mind wars with a beginning and an end.

That is such pure foolishness that it is impossible to lampoon.

The writer(s) push on to their full glory, which of course obliges them to bring Nixon into the editorial while rescuing FDR from the clutches of the Adminsitration:

Mr. Gonzales, who had the incredible bad taste to begin his defense of the spying operation by talking of those who plunged to their deaths from the flaming twin towers, claimed historic precedent for a president to authorize warrantless surveillance. He mentioned George Washington, Woodrow Wilson and Franklin D. Roosevelt. These precedents have no bearing on the current situation, and Mr. Gonzales’s timeline conveniently ended with F.D.R., rather than including Richard Nixon, whose surveillance of antiwar groups and other political opponents inspired FISA in the first place. Like Mr. Nixon, Mr. Bush is waging an unpopular war, and his administration has abused its powers against antiwar groups and even those that are just anti-Republican.

There isn’t a shred of evidence to back up a claim that the Bush Adminsitration has used the NSA program to abuse antiwar or anti-Republican groups, and the writer(s) is careful only to insinuate as much, leaving open the possibility that making Cindy Sheehan camp in Crawford is the abuse the editorial means. The threadbare “argument” had already gone over the cliff, though, with the declaration that the precedents the New York Times finds inconvenient don’t count.

Until this paragraph, almost every legal commentator in the country opining on the NSA program has been talking about Justice Jackson’s zones and the Youngstown case. Apparently someone finally read Hamdi and realized that AUMF argument was a killer, so the left retreated to….

I am not sure. There really isn’t any serious legal argument against the program as it has been described by both he Administration and its critics. The president can order the NSA to conduct surveillance of al Qaeda abroad contacting its agents in the United States, and he doesn’t need a warrant to order that surveillance to be conducted.

Such surveillance was conducted prior to 1978 and FISA and it was a constitutional use of the president’s authority then. Even if FISA had tried to restrict the president’s authority to conduct such surveillance, it could not have done so. And all the cases that get close to the issue remark on that principle, especially In re Sealed Case No o2-001 quoted by Powerline’s Hinderaker and every serious commentator –and ignored by the Times:

The Truong court, as did all the other courts to have decided the issue, held that the President did have inherent authority to conduct warrantless searches to obtain foreign intelligence information. … We take for granted that the President does have that authority and, assuming that is so, FISA could not encroach on the President’s constitutional power.

Because the law is so clear we have been treated to a steady stream of silly arguments, the latest of which is the attempted elevation of a failed statutory proposal from Senator DeWine into dispositive interpretive authority. No first year law student would make such an argument, but the left has seized on it as crucial.

Why? Because it has nothing else. Not Supreme Court precedent, not federal circuit court precedent, and no actual facts to justify the rhetoric of abuse and Nixon/Johnson/JFK dirty tricks against political opponents.

The left is afraid to make the political argument that NSA surveillance of al Qaeda abroad contacting its agents in the United States is a bad idea, so instead it is making an absurd and unpersuasive legal argument.

Why afraid? Because that argument strikes Americans as insane, and it should.

Rather than clearly stating its political position, the left is engaged in an extended attempt to confuse the legal argument and distort the program so as to make Americans fear the Bush Adminsitration is doing something it isn’t doing.

This ministry of all talents on the left hasn’t succeeded in persuading anyone who hadn’t already gone deep into the fever swamp of the program’s illegality.

But it continues to be good for a laugh.

And we are also getting a very good idea of how the Democrats denouncing the program would act if they were in charge of the nation”s war against al Qaeda: Just as they acted from January, 1993 to January, 2001.


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